Workwell program which is designed to promote health and safety in Ontario workplaces by levying additional assessments on employers that do not maintain safe and healthy environments.

New Experimental Experience Rating ("NEER") plan which encourages employers to invest time and money in making the workplace safer and therefore reducing injury.

Voluntary Experience Rating ("VER") plan which recognizes high and low cost experience of firms. A comparison is made between individual firms through their three-year average cost rate. This plan was discontinued as of January 1, 1992, when all experience rated plan employers were transferred to NEER.

CAD-7 experience which is in effect for the construction industry.

Demerit penalty program under s. 103(8) (formerly R.S.O. 1980, c. 539, s. 91(7)) which is intended for those employers whose accident costs and frequency of lost time injuries are consistently poorer than average. The record for a three-year period and life time are used in determining the firm's eligibility for this penalty:

The NEER, CAD-7 and VER programs; the names, addresses and amounts of surcharge, penalty or fine for the 50 companies with the highest penalties ratings for the year 1991 (which will be referred to as records 1, 2 and 3); and

Workwell and s. 91(7) programs: only the names and addresses of the 50 companies with the highest penalties, fines or penalty ratings, for the year 1990 (which will be referred to as records 4 and 5).

A six-page computer-generated list of the names, addresses and surcharge amount of 50 employers in the NEER program, ordered by surcharge amount from greatest to least.

A three-page computer-generated list of the names and surcharge amounts for 50 employers in the CAD 7 program, ordered by amount of surcharge from greatest to least: and 50 pages containing the addresses of the employers on the list.

A three-page computer-generated list of the names and surcharge amount for 50 employers under the VER Program, ordered by surcharge amount from greatest to least: and 50 pages containing the addresses of the employers on the list.

A four-page computer-generated list of the names and addresses of all 45 employers covered by the Workwell program, ordered by surcharge amount from greatest to least. This record does not contain the actual amounts of surcharge.

A three-page computer-generated list of the names of fifty employers subject to the s. 91(7) program, ordered by surcharge amount from greatest to least; and a one-page document containing the addresses of the employers on the list. This record does not contain the actual amounts of surcharge.

Under this system, each employer pays a premium/ contribution to the Board, based on the type of industry the employer is engaged in, the size of its payroll, and other criteria. Benefits paid to workers injured on the jobs are paid out of funds pooled from all employers.

The WCA permits the implementation of a system of experience rating. Under experience rating, an employer's assessment is adjusted on the basis of the employer's accident record, which may consist of accident costs or both costs and frequency of accidents. Experience rating is used primarily as an incentive for improved occupational safety, since an employer with a good record will pay less and one with a poor record will pay more.

The WCA also permits the Board to impose surcharges (additional contributions) on employers that do not maintain safe and healthy environments, or employers who contravene safety regulations. The Board may surcharge or refund an employer based on payroll adjustments, changes in industry classification, the merit/demerit rating, experience rating of the employer, and other factors. Employers are required to supply the Board with certain information by completing various forms. The formulae and criteria used by the Board to calculate surcharges or refunds is known in the industry, and the WCA provides an appeal mechanism for employers disputing the surcharges.

At the time of the appellant's request, the Board administered the five experience related programs which are the subject of these appeals.

Under the NEER program, a firm's accident cost and/or frequency record is compared to the average for the industry in which it is registered. If its record is better than the industry average, it receives a refund on its initial assessment; if the firm's experience is worse than the industry's average, a surcharge is levied.

The CAD 7 program is restricted to employers in the construction industry. Under this program, the expected accident costs and the expected number of injuries are determined on the basis of the employer's payroll and assessments. These expected values are then compared to their firm's actual accident costs and actual number of injuries to determine refunds and surcharges.

Under the Workwell program, the Board identifies employers who have particularly poor accident records for their rate group in terms of accident cost, accident frequency and/or accident severity. The evaluation process involves on-site visits by Board evaluators who review the occupational health and safety program at the work site, examine documentation, observe the employer's practices and procedures in action, tour the work site and conduct random interviews with workers. Employers who do not meet the required standards are given 90 days to improve health and safety shortfalls prior to re-evaluation. If, at the conclusion of the second evaluation, the employer fails to achieve the standards, an additional levy is applied.

The s. 91(7) program is intended for employers whose accident costs and frequency of lost time injuries are consistently poorer than average. The record for a three-year period is used in determining the employer's eligibility for this penalty.

The VER program recognizes high or low-cost experience of employers within a rate group classification: (Employees are divided into rate groups based on the end product manufactured or service provided.) A comparison is made between an individual employer's three-year average cost rate and three-year average cost rate of all the eligible employers in the rate group. VER then reduces or increases an individual employers' rate of assessment, based on its accident record. (The Board has advised that this plan was discontinued, effective January 1, 1992, when all VER program employers were transferred to the New Experimental Experience Rating Plan).

Whether the mandatory exemption provided by ss. 17(1)(a) and/or (c) of the Act applies to any of the records.

Whether the mandatory exemption provided by s. 17(2) of the Act applies to any of the records.

If the answer to Issues A and/or B is yes, whether the provisions of s. 23 of the Act apply in the circumstances of this appeal.

The relevant provisions of the Act are as follows:

10(1) Every person has a right of access to a record or a part of a record in the custody or under the control of an institution unless the record or the part of the record falls within one of the exemptions under sections 12 to 22.

17(1) A head shall refuse to disclose a record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly, where the disclosure could reasonably be expected to,

prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization;

result in undue loss or gain to any person, group, committee or financial institution or agency . . .

(2) a head shall refuse to disclose a record that reveals information that was obtained on a tax return or gathered for the purpose of determining tax liability or collecting a tax.

23. An exemption from disclosure of a record under sections 13, 15, 17, 18, 20 and 21 does not apply where a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption.

the record must reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information; and

the information must have been supplied to the Board in confidence, either implicitly or explicitly; and

the prospect of disclosure must give rise to a reasonable expectation that one of the types of injuries specified in s. 17(1)(a) and/or (c) will occur.

Failure to satisfy the requirements of any part of this test will render the s. 17(1) claim invalid (Order 36).

I have received representations from the various parties that the release of the records could be expected to result in: significant prejudice to the employers' competitive position or contractual or other negotiations; undue loss to the employers; and undue gain to others. These representations place heavy emphasis on the possible misuse and/or misinterpretation of the information contained in the records.

The Board states that "the fact that a firm is surcharged . . . does not ipso facto mean that the firm is a poor performer, 'unsafe', a poor risk or makes unsafe products". The Board's concern is that "the fact that a firm is surcharged (and on this list) creates an unnecessary negative image and causes the loss of business, revenue, profitability, and higher costs based on information that is potentially misleading, unfair and in 10% - 50% of the cases, inaccurate. Yet the firm would still be prejudiced by the stigma of being considered an unsafe work place and would have no avenue to vindicate its record with the public, suppliers, customers, etc".

The representations of one of the affected persons state:

The information in the record (Record 3) can easily mislead anyone who is not very familiar with the W.C.B. and its methods. The [affected party] has one of the 50 largest V.E.R. surcharges . . . but this is not all reflective of our recent accident record. The large surcharge is part of a function of the size of our organization. A much smaller company with a worse record and a higher surcharge rate could have a lower actual surcharge due to a smaller assessable payroll.

This affected person indicates that the surcharge applied to it relates in large part to costs for individuals injured in the past, and submits:

. . . if the record is released, or if the public learns that the [affected party] was one of the companies with largest V.E.R. surcharges in [a given year], then the public, or members of the public, will believe that the [affected party] has an ongoing, poor record concerning workplace health and safety. [It] will be required to expend further time, money and other resources in order to publicize our actual safety record, in order to correct the impression that would be created by disclosure of the record, or any part.

Whereas the Board and certain affected persons and employer associations have advanced general arguments as to how disclosure of an employer's payroll, volume and frequency of accidents, and its safety record might be harmful to its competitive interest, they have failed to bridge the evidentiary gap necessary to establish that disclosure of the records at issue in these appeals would reveal this type of information.

I find the evidence regarding harm that could result from a negative interpretation of the information contained in the records is not sufficient to establish the third part of the section 17(1) exemption test. In my view, the evidence consists of generalized assertions of fact in support of what amounts to, at most, speculations of possible harm.

To discharge the burden of proof under the third part of the test, the parties resisting disclosure must present evidence that is detailed and convincing, and must describe a set of facts and circumstances that could lead to a reasonable expectation that one or more of the harms described in s. 17(1) would occur if the information was disclosed [Order 36]. There is nothing in s. 17(1)(c) that requires "detailed and convincing" evidence. The Act only requires that there be evidence that "disclosure could reasonably be expected" to cause harm which of necessity involves some speculation. This point has been considered and settled by the Federal Court of Appeal in Canada Packers v. Canada, [1989] 1 F.C. 47 at pp. 57 and 60, 53 D.L.R. (4th) 246, where it considered similar wording. There need only be evidence of a reasonable expectation of probable harm which of necessity involves some speculation. The Commissioner had before him a very large number of submissions that harm would be reasonably expected. He recited some of these in his reasons.

information that a firm may have a poor safety record and higher costs is considered a trade secret by business;

the information is of commercial nature and that the Commissioner had recognized this in a prior Order No. 76 relating to a list of dairy producers' names and addresses;

the information is of commercial nature because it relates to business practices, expenses of the firms and that such knowledge is critical to any party doing business with the firm for the information that a firm is "unsafe" and is liable for higher assessment is strictly the financial information of the firm.

17(2) A head shall refuse to disclose a record that reveals information that was obtained on a tax return or gathered for the purpose of determining tax liability or collecting a tax.

I am not persuaded that the assessments to create and maintain a compensation fund should be characterized as taxes within s. 92(2) of the British North America Act, 1867. The levies, as monetary exactions, are liquidating premiums to satisfy farmers' claims under s. 6D and the policy of the Act is to relate the assessments to the compensation awards and to administrative expenses. They are designed to support a limited form of insurance for the benefit of farmers who purchase agricultural implements, related to their use of such implements. There is here no collection of money to go into a consolidated revenue fund which is then chargeable with satisfying awards of compensation. Although the scheme is a public one, created under a public statute, its beneficiaries and obligors are circumscribed by the particular activity or enterprise in which they are engaged.