On 9 October 2019, pursuant to paragraph 16 of the Confidentiality Order dated 24 June 2019 (the “CO”), the Respondent submitted preliminary confidential versions of its Response to the Claimant's Request for Interim Measures, its cumulative index of supporting documentation, and exhibits R-021 and R-022 (the “Confidentiality Designations”).
By letter dated 29 October 2019, in accordance with paragraph 16 of the CO, the Claimant submitted its objections to the Respondent's Confidentiality Designations, arguing inter alia that the “proposed redactions do not meet the criteria for ‘Confidential Information' under Section I(b) of the Confidentiality Order.”
By letter dated 12 November 2019, in accordance with paragraph 17 of the CO, the Respondent submitted its replies to the Claimant's objections to its Confidentiality Designations.
By letter dated 14 November 2019, the Claimant contended that the Respondent raised for the first time in its 12 November 2019 letter specific grounds on which it based its Confidentiality Designations, including Section 19 of the Ontario Freedom of Information and Protection of Privacy Act (the “FIPPA”), and requested that it be given an opportunity to respond to the new information by 19 November 2019. The Claimant further proposed that the Respondent then be given until 22 November 2019 to reply, and that the Parties be given until 27 November 2019 to try to reach an agreement on the issue in accordance with paragraph 17 of the CO.
By e-mail dated 15 November 2019, the Tribunal noted that, in accordance with the procedure set forth in the CO, the Parties were to “attempt to reach an agreement on the objected designations”, and if no such agreement is reached within 21 days of the Respondent's reply, i.e. 3 December 2019, to jointly submit a Disputed Designations Schedule to the Tribunal for resolution.
By e-mail dated 2 December 2019, the Claimant informed the Tribunal that the Parties had failed to reach an agreement on the Confidentiality Designations, and requested leave to submit comments on the new contentions raised in the Respondent's 12 November 2019 letter, and in particular to “advise the Tribunal that the Ontario FIPPA is not applicable in this situation, and that the cases relied upon by Canada are irrelevant and inapplicable.”
By letter dated 3 December 2019, the Respondent inter alia objected to the Claimant's request, arguing that the Claimant has offered “no reasoned basis” to justify a further round of submissions, which will unnecessarily burden the arbitral process. The Respondent further submitted the Disputed Designations Schedule, which contained the Parties' relevant arguments to date, to the Tribunal for resolution.
By e-mail dated 5 December 2019, the Tribunal noted that after failing to reach an agreement, the Parties had submitted the Disputed Designations Schedule to the Tribunal for resolution. Thus, in accordance with the CO, the Tribunal considered itself seised of the issue and would render a decision in this respect in due course. In addition, the Tribunal expressed its view that the Respondent had raised in its 12 November 2019 letter arguments regarding Section 19 of the FIPPA that were not addressed in its initial submission of 9 October 2019, and that the Claimant had not had the opportunity to address. As such, consistent with paragraph 17 of the CO which provides that it may “invite further submissions on proposed designations”, the Tribunal directed the Claimant to submit its comments on the Respondent's arguments regarding Section 19 of the Ontario FIPPA by 12 December 2019, and the Respondent to provide its reply by 19 December 2019.
On 12 December 2019, the Claimant submitted its comments on the Respondent's arguments on Section 19 of the Ontario FIPPA, along with exhibit C-020, legal authorities CLA-075 to CLA-080, and updated indices of exhibits and legal authorities. In its submission, the Claimant argued inter alia that the Ontario FIPPA is inapplicable to the case at hand because the Claimant did not request exhibits R-021 and R-022 via a FIPPA request. Moreover, even if Section 19 of the FIPPA did apply to the two exhibits, they would still not be shielded from disclosure because the Respondent has waived any right to privilege with respect to them by “ma[king] a strategic choice to … bring them into this action.” The Claimant also argued that “[i]t would deny fundamental principles of fairness and equality for Canada to be able to use documents during this supposedly open arbitration and then claim they should still be shielded from the public.” For these reasons, in addition to those previously submitted, the Claimant requested the Tribunal to reject the Respondent's Confidentiality Designations.
On 19 December 2019, the Respondent submitted its reply to the Claimant's 12 December 2019 submission, along with exhibit R-024, legal authorities RLA-093 to RLA-097, and an updated index of supporting documentation. In its submission, the Respondent disputed the Claimant's contentions regarding Section 19 of the FIPPA, and maintained inter alia that (i) the definition of “Confidential Information” in the CO expressly includes information otherwise protected from disclosure under the FIPPA, regardless of whether the two exhibits were requested via a FIPPA request or whether the Respondent “voluntarily disclosed” them in the arbitration; and (ii) the information covered by the Confidentiality Designations is protected under Section 19 of the FIPPA, which is a legislated exemption that is broader than common law privilege and may not be subject to the principle of waiver at common law. The Respondent further noted that if the Tribunal were to require the Respondent to publicly disclose documents that are otherwise protected from disclosure under domestic law, it “may have no choice but to withdraw these documents from the record.”
By e-mail dated 20 December 2019, the Respondent sought a postponement of the deadlines for the filing of its proposed designations on documents related to the Confidentiality Designations until after the Tribunal made its ruling thereon.
2. The Tribunal's Decision
Having carefully considered the Parties' respective arguments, including those regarding Section 19 of the Ontario FIPPA, the Tribunal finds that the Respondent's Confidentiality Designations are justified under the CO, and sets out its decision in the Disputed Designations Schedule enclosed as Annex 1 to this Order.
In accordance with paragraph 19 of the CO, the Respondent shall by Monday, 10 February 2020 file final Confidential and Public Versions of its Response to the Claimant's Request for Interim Measures, its cumulative index of supporting documentation, and exhibits R-021 and R-022.
The Parties are further directed to submit by Monday, 20 January 2020 any proposed Confidential Information designations on documents related to the above-mentioned Confidentiality Designations, in accordance with procedure set forth in paragraph 16 of the CO.