Davie seeks gag on shipbuilding deal
Quebec shipyard suing Ottawa to block disclosure
OTTAWA • Quebec-based Davie shipyard is suing the federal government to prevent it from releasing a single word of the agreement that made it eligible for billions of dollars in potential federal shipbuilding contracts.
In April, flanked by a bevy of shipyard workers and federal and provincial politicians, Prime Minister Justin Trudeau held an upbeat press conference to announce that Chantier Davie was formally joining the country’s flagship shipbuilding program alongside Nova Scotia-based Irving Shipbuilding and B.c.-based Seaspan Shipyards.
Behind the scenes, the government and Davie signed an “umbrella agreement” that will serve as a framework for negotiations for each shipbuilding contract, namely six icebreakers and one polar icebreaker for the Canadian Coast Guard. Trudeau pegged the total estimated value of the contracts at $8.5 billion.
The company says the agreement also includes specific sections on Davie’s contractual obligations related to modernizing the shipyard and creating economic spinoffs.
But the company doesn’t want the agreement made public and is asking the Federal Court to block the government from releasing any part of it in response to an access to information (ATI) request filed after the deal was signed.
In December, the company applied to the Federal Court to ask a judge to block the government from disclosing any portion of the agreement because it’s confidential commercial information.
In an interview, lawyer and access to information specialist Michel Drapeau said it would be “unusual” for the government to withhold the entirety of the requested records.
In its application, Davie says that Public Services and Procurement Canada (PSPC), which signed the deal with the company, wrote to it following the ATI request asking for its observations on disclosure of the agreement. The identity of the person or organization who made the ATI request has not been released.
One month later, Davie says it told PSPC it was opposed to releasing any part of the agreement, relying on sections of Canada’s Access to Information Act that preclude the government from disclosing certain information pertaining to third party commercial information. It also argued any disclosure would violate part of the Defence Production Act.
Those arguments don’t appear to have swayed PSPC, who wrote the company in November stating it intended to release “certain parts” of the umbrella agreement.
Displeased with that decision, Davie turned to the Federal Court, alleging PSPC’S decision is “tainted by an error of law” and asking a judge to forbid the government from releasing any part of the deal. It argues that the “entirety” of the agreement is covered by disclosure exemptions contained in the ATI and Defence Production Acts.
“The information contained in the UA forms an inseparable whole and PSPC must not disclose any passage of it,” reads the lawsuit.
PSPC declined to comment as the case is in front of the courts. It has not yet filed a defence but has signalled its intent to fight the application.
The lawsuit does not detail which parts of the agreement PSPC intended to release, and Davie spokesperson Marcel Poulin said he could not provide exhibits detailing exchanges between the government and the company until they were filed in court.
Drapeau, who wrote a book on Canada’s access to information regime, says that PSPC ATI analysts are “pretty expert at applying the law correctly” in cases like these.
An ATI request like the one requesting the agreement between Davie and PSPC would require government access to information analysts to go through the requested records “with a fine-tooth comb” to redact any information exempted from disclosure by law.
They would then usually be able to release some portions, even if it’s just generic information like the company’s name, he explained.
“In this kind of issue, there are always fragments that are not restricted or in some ways prevented from disclosure,” he said.
Drapeau says third party commercial information exemptions in the ATI have been “jurisprudenced to death” and that the court review should be “fairly quick.”
IN THIS KIND OF ISSUE, THERE ARE ALWAYS FRAGMENTS THAT ARE NOT RESTRICTED.