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FOI (Ont) - Third-Party Exemption. Canadian Home Healthcare Inc. v. Halton Healthcare Services and Information and Privacy Commissioner of Ontario
In Canadian Home Healthcare Inc. v. Halton Healthcare Services and Information and Privacy Commissioner of Ontario (Div Court, 2024) the Divisional Court dismissed a JR, here against FIPPA IPC arbitration orders that "collectively, require disclosure of a portion of a Joint Venture Agreement (the “JVA”) and accounting records (the “Payment Records”) between the Applicant and the Respondent Halton Health Services (“HHS”) [SS: the 'institution']".
Here the court considers FIPPA s.17 ['third party information'] (also s.28: 'Notice to affected person') access exemptions:ii. The Adjudicator’s Interpretation and Application of FIPPA s. 17(1) Was Reasonable
[29] The adjudicator’s finding that the second requirement of the s. 17(1) test, which requires that the information must have been “supplied in confidence”, did not apply to the JVA, was sound. Evidence provided by HHS’ demonstrating that the JVA was the result of mutual negotiations between HHS and the Applicant. The Applicant was provided an opportunity to respond to this evidence but decided not to do so.
[30] The IPC cited several Divisional Court decisions confirming that information contained in a contract is not generally considered to be “supplied” for the purposes of s. 17(1). I repeat them here: Boeing Co. v. Ontario (Ministry of Economic Development and Trade, 2005 CanLII 24249 (ON SCDC) at para 18; Grant Forest Products v. Caddigan, 2008 CanLII 27474, at paras. 6-8; HKSC Developments LP v Infrastructure Ontario, 2013 ONSC 6776 at para 31; Miller Transit Limited v. Information and Privacy Commissioner of Ontario et. al., 2013 ONSC 7139 at para. 37; Aecon Construction Group Inc. v. Information and Privacy Commissioner of Ontario, 2015 ONSC 1392, at para. 13; Toronto-Dominion Bank v. Ryerson University, 2017 ONSC 1507, at para. 33; K-Bro Linen Systems Inc. v. Ontario (Information and Privacy Commissioner, 2022 ONSC 3572, at para. 24.
[31] Accepting the Applicant’s interpretation of this provision would effectively result in overturning decades of jurisprudence governing s. 17(1)’s application to government contracts. The Applicant makes substantially the same arguments that were rejected by the Divisional Court in decisions such as Toronto-Dominion Bank and K-Bro (K-Bro Linen Systems Inc. v. Ontario (Information and Privacy Commissioner, 2022 ONSC 3572, at para. 24; Toronto-Dominion Bank v. Ryerson University, 2017 ONSC 1507, at para. 33). And, adopting the Applicant’s interpretation would also severely limit public transparency into government contracts with third parties, which is contrary to the legislative intent of FIPPA. . K-Bro Linen Systems Inc. v. Ontario (Information and Privacy Commissioner)
In K-Bro Linen Systems Inc. v. Ontario (Information and Privacy Commissioner) (Div Court, 2022) the Divisional Court considered a FIPPA s.17 'business harm' exception, on the issue of whether third party information was 'supplied in confidence':[3] Jane Doe and K-Bro both appealed the Hospital’s decision to the Information and Privacy Commissioner (“IPC”). K-Bro argued that the records or portions of the records contain third party information that is exempt from disclosure. Section 17(1) of FIPPA limits the general right to access records in the possession of a public institution, including hospitals, if the record contains certain types of sensitive information: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,
(a) prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization;
(b) result in similar information no longer being supplied to the institution where it is in the public interest that similar information continue to be so supplied;
(c) result in undue loss or gain to any person, group, committee or financial institution or agency; or
(d) reveal information supplied to or the report of a conciliation officer, mediator, labour relations officer or other person appointed to resolve a labour relations dispute. ....
[5] The IPC Adjudicator ordered the Hospital to disclose a copy of a linen services contract and a memorandum summarizing the terms of the contract. The Adjudicator agreed with K-Bro that the contract and memorandum contain financial information about the cost of providing linen services to the Hospital. However, the Adjudicator found that the financial information was not supplied to the Hospital by K-Bro in confidence. The Adjudicator, therefore, found that the contract and the memorandum were not exempt from disclosure under s. 17(1)(a) of FIPPA.
....
[10] K-Bro acknowledged that the Adjudicator correctly stated the three-part test for exempting records from disclosure under s. 17(1)(a) of FIPPA. She correctly held that for the exemption in s. 17(1)(a) to apply, K-Bro had the onus of proving the following:a. the record contains information that is a trade secret or scientific, technical, commercial, financial or labour relations information; and
b. the information was supplied to the institution in confidence, either implicitly or explicitly; and
c. the disclosure of the information could reasonably be expected to significantly prejudice K-Bro’s competitive position. [11] K-Bro argues that the Adjudicator’s conclusion that the information was not supplied to the Hospital in confidence is inconsistent with the existing jurisprudence and is internally inconsistent. We disagree.
[12] There are several decisions from the IPC and this Court dealing with what it means for information to be “supplied in confidence” during contract negotiations. This Court has found that the content of a negotiated contract will not ordinarily be considered information “supplied” in confidence by a party to the contract: Boeing Co. v. Ontario (Ministry of Economic Development and Trade), 2005 CanLII 24249 (ON SCDC), Miller Transit Limited v. Information and Privacy Commissioner of Ontario, 2013 ONSC 7139. This is true even if there was little negotiation over the contract or where the contract substantially reflects a proposal made by a party to the final contract. For example, in Boeing Co. v. Ontario (Ministry of Economic Development and Trade) at para. 18, the Court wrote:The Commissioner has consistently found that information in a contract is typically the product of a negotiation process between the parties and that the content of a negotiated contract involving a governmental institution and another party will not normally qualify as having been “supplied”. Even where the contract is preceded by limited negotiation, or where the final agreement substantially reflects information that originated from a single party, the Commissioner has concluded that the information was not supplied (for example, IPC Order MO-1706, pp. 9-10; IPC Order P-1545 at pp. 9-10). [13] In Miller Transit, the Court held (at para. 27) that absent evidence to the contrary, the content of a negotiated contract involving a government institution and a third party is presumed to have been generated in the give and take of negotiations, not "supplied" by the third party. The onus was on K-Bro to rebut the presumption that the information in its service contract is not covered by the exemption in s. 17(1): Miller Transit, at para. 31. More at paras 14-25.
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