Letter Decision No. LET-W-120-2000
Application by Halterm Limited pursuant to section 52 of the Canada Marine Act Confidentiality Order
The following Confidentiality Order reflects the agreement of Halterm Limited (Halterm) and the Halifax Port Authority (the HPA) and is a direction on procedure made pursuant to section 7 of the National Transportation Agency General Rules (the General Rules) to assist the Canadian Transportation Agency (the Agency) in its investigation of the above-noted matter. The Order is directed to Halterm and the HPA as well as to any interveners who wish to obtain access to confidential documents during the course of the public hearing.
A. Confidentiality Regime:
- All persons who have occasion to view a document for which there is a claim of confidentiality made by the other party will execute a confidentiality undertaking in the attached form prior to having access to the document. All undertakings will be filed with the Agency and served on the other party.
- There will be three levels of confidentiality, with Level 1 describing the distribution of the most confidential documents and Level 3 describing the distribution of the least confidential documents: Level 1: disclosed to Agency, counsel and experts Level 2: disclosed to Agency, counsel, experts and all designated advisors Level 3: disclosed to Agency and to the parties, but not otherwise publicly available
- The reference to "parties" in Level 3 does not include interveners, but does include such individuals or other corporations that have a direct interest in either the HPA or Halterm - these individuals or corporations will be specifically identified by counsel prior to implementation of this regime. The references to "parties", "experts" and "advisors" include potential witnesses.
- On or before May 8, 2000, counsel shall exchange two lists: a) a list of names of those to whom disclosure of confidential documents would be made, along with copies of the signed undertakings; and, b) a list of the documents already filed with the Agency with the level of confidentiality claimed for each. The signed undertakings and copies of these lists shall be provided to the Agency at the same time. Counsel will then have 48 hours to file with the Agency any objections they may have to the disclosure. If no objections are filed, the Agency will then proceed to mark the documents accordingly and counsel shall provide disclosure to the parties as agreed.
- Signed undertakings may be filed with the Agency by the parties from time to time as required, and the time frame for objections set out above will apply to all new persons proposed to have access to the confidential documents.
- Each party that files materials of a confidential nature with the Agency during the course of this proceeding shall, in the cover letter to the filing, assert a claim for confidentiality and indicate which level of confidentiality the party views as appropriate for each document.
- The time frame for objections set out above will apply to all new documents filed. If, after 48 hours, no objection has been received, the document will be marked with the level of confidentiality claimed and will be released accordingly.
- If a dispute arises between the parties on the composition of the disclosure lists, a confidentiality claim or the level of confidentiality proposed, or if the Agency disagrees with the proposed treatment of a document, the Agency will determine, in accordance with section 11 of the General Rules, the nature of the disclosure required as well as the terms and conditions of that disclosure, where appropriate.
- Interveners at the public hearing will not be provided with access to the confidential documents filed. Interveners may, however, make specific requests for disclosure under subsection 11(6) of the General Rules. Parties may agree to disclose the subject documents to the intervener according to the terms of the confidentiality regime contained in this Order or, should there be no agreement on this, the Agency will consider the request in accordance with the provisions of section 11 of the General Rules and the tests contained therein.
B. Contested Claims for Privilege
- Where agreement cannot be reached between the parties and the Agency on the validity of claims of privilege made with respect to documents to be produced, these disputes will be referred to an Agency panel composed of Vice-Chairman Jean Patenaude and Member Mary-Jane Bennett.
- Written notice of the disputed claim will be filed with this panel and simultaneously copied to the other party. The party claiming the privilege will then file with the Agency the subject documents in unabridged form in sealed envelopes with the panel within 48 hours of receipt of the written notice along with written submissions in support of the claim of privilege. The written submissions will be served on the other party at the same time and the other party will then have 48 hours from the receipt of the submissions within which to file with the Agency written submissions in support of its position.
- The panel will review the documents filed to determine whether the claim of privilege is valid for each document in dispute. Should the panel determine that a claim is valid, the subject document(s) will be returned to the party claiming the privilege. Should the panel reject the claim of privilege, the subject document will be returned to the party to be filed with the Agency in accordance with paragraph A.6., above.
- The decisions of this panel on the validity of the claims for privilege shall be decisions of the Agency for purposes of the Canada Transportation Act.
- The parties acknowledge and agree that the provisions of this Order may be amended or changed from time to time, on the written agreement of the parties and the agreement of the Agency as evidenced by the issuance of an Amendment to this Order, or as may be ordered by the Agency.
Should you have any questions, you may contact Agency Counsel, Elizabeth Barker at (819) 997-9325 or Inge Green at (819) 953-0611.