SJ Port, AIM lease details won't be released pending appeal for 'extremely broad' redactions

A Federal Court judge has ruled that American Iron and Metal can't have the "extremely broad" redactions it wants made to its lease documents with Port Saint John.

But until AIM has a chance to appeal the decision, the public still can't see the full documents.

More than a year before the fire at AIM and after the deaths of two workers at the AIM scrapyard, CBC News asked the port for a copy of its lease with AIM through access to information. However, because of objections from AIM, the lease documents still can't be released without the broad redactions.

At issue is how much information should be redacted from the 2011 lease and the 2017 amended lease. 

AIM argued the port's redactions don't go far enough, and asked for large sections to be kept confidential. On Thursday, Justice Anne Turley ruled AIM did not adequately prove that releasing the documents as redacted by the port would harm the company's interests.

But the lease will continue to be redacted broadly until the appeal process is complete.

The judge said the redactions requested by AIM were "extremely broad" and included hours of operations, the lease termination date, description of business activities, environment provisions and cleanup responsibilities. 

WATCH | The fire that burned for two days at AIM's west side scrapyard:

During last week's scrapyard fire, Saint John residents were asked to take shelter from smoke

1 year ago

Duration 1:33

Sights and sounds from Sept 14, when crews battled flames at the American Iron and Metal recycling plant next to Saint John Harbour. The fire was brought under control the following day.

Last week, a huge pile of scrap metal burned for two days at AIM's waterfront yard, the smoke prompting a shelter-in-place health warning for residents of Saint John and surrounding areas.

Calls for AIM's eviction have been raised for years — because of noise, explosions and alleged safety issues — and they became even louder after the fire. The City of Saint John is among those wanting it shut down permanently.

On Tuesday, the port said it's working with a provincial taskforce to "look at all aspects of the lease" to see if it could move the metal recycling operation elsewhere.

On Sept, 8, the court notified the parties in the case that it was ruling in favour of the port and CBC. Last Friday, before the decision was released, AIM sent a letter to the court saying it plans to appeal. 

AIM requested that both the judge's decision and the leases themselves not be released pending the appeal. The judge denied the request to withhold the decision, but agreed that the redacted material in question should remain confidential pending the appeal process.    

A year-long legal battle

In July 2022, after two workers died on the job at AIM within seven months, CBC asked Port Saint John for copies of the lease agreement it signed with the company. At the time, the port said it would be able to share the lease after making some redactions "to protect commercially sensitive content as outlined by our regulations" and after allowing AIM to review it.

According to the judge's decision released Wednesday, the port redacted rent and wharfage amounts and the minimum amount to be invested by AIM for capital infrastructure improvements. AIM agreed with the port's redactions but suggested several others. 

The decision says on Aug. 6, 2022, the port told AIM that they will not be accepting its suggestions for redactions, and that it plans on releasing the lease with the original redactions only.

On Aug. 26, AIM filed an application in Federal Court, asking that a judge review this decision from the port and prohibit it from disclosing "a record, or part of a record," based on the Access to Information Act.

After hearing arguments from lawyers representing Port Saint John, AIM and CBC, the judge decided in favour of the port's version. 

The judge said in order to redact something, it's up to AIM to prove that the information is financial or technical, confidential, or supplied to government by AIM and consistently treated as confidential.

The judge said the information AIM is trying to get redacted wasn't supplied to government. Rather, it was negotiated between the two parties.

The judge also said AIM failed to prove that there would be harm to its business interests from the information becoming public.

"Rather than file evidence that addresses the particular information in the two agreements, AIM rests its case on generalities, bald assertions, and speculation," the judge said.

The judge said the affidavit filed by AIM CEO Herbert Black to back up the company's case "makes broad, sweeping statements about the potential harm" but gives no specific evidence.

The decision said Black wrote that he believes CBC would use the lease to "continue its campaign of negative media coverage of AIM."

The judge said she found there is "simply no evidence to substantiate AIM's claim of a 'campaign' by CBC."

"Only one of the five media articles included in Mr. Black's affidavit was actually published by CBC," the judge wrote. 

"AIM's concerns about the possibility of future negative media coverage are insufficient to justify redaction of the information it seeks to protect."

AIM has 30 days from the date of the issued decision to file an appeal. 

During the fire last week, the province ordered AIM to shut down. On Tuesday, Premier Blaine Higgs said the company won't resume operations until "we're satisfied that it can run."

The province and port have not given a timeline for the review of the lease.