FOI - Third-Party Exemption (Ontario). 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':
 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:More at paras 14-25.
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.
 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.
 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 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.
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.
 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). 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.