2016 ONSC 1616

DIVISIONAL COURT FILE NO.: DC-15-154 DATE: 20160307

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

H. SACHS, J. THORBURN, W. LEMAY JJ.

BETWEEN:

ACCENTURE INC. Applicant

– and –

ONTARIO (INFORMATION AND PRIVACY COMMISSIONER) Respondent

– and –

METROLINX Respondent

Colin Baxter, for the Applicant Lawren Murray, for the Respondent, Information and Privacy Commissioner John B. Laskin, for the Respondent, Metrolinx

HEARD at Toronto: March 1, 2016

THORBURN J.:

OVERVIEW

1The Applicant, Accenture, seeks judicial review of the Information and Privacy Commissioner’s Order to disclose certain documents requested by a member of the public.

2The Application concerns the interpretation and application of sections 17 and 53 of the Freedom of Information and Protection of Privacy Act, R.S.O, 1990, c F.31 (“the Act”). These sections articulate the grounds upon which information may be exempt from disclosure pursuant to the Act.

3Section 17 of the Act provides that:

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…

4However, section 53 of the Act provides that a document will be exempt from disclosure only if a party can satisfy this three part test:

a) the information is a trade secret or technical, commercial or financial information;

b) the information was supplied in confidence either implicitly or explicitly; and

c) the prospect of disclosure of the record gives rise to a reasonable expectation that one of the harms set out in section 17 of the Act will occur.

5The Commissioner found that Change Notices and Change Notice Agreements contained commercial information but they were not “supplied in confidence”. She therefore ordered that they be disclosed to the requesting party. She further held that the Detailed Feasibility Notices contained commercial information, and they were supplied in confidence, but that the prospect of disclosure of much of the information in these records did not give rise to a reasonable expectation of harm. Therefore, edited copies of the Detailed Feasibility Notices should be disclosed to the requesting party.

ISSUES TO BE DETERMINED

6The issues to be addressed on this Application for judicial review are:

i. Was the Commissioner’s decision that the Change Notices were not supplied by the Applicant (and were therefore to be disclosed) reasonable?

ii. Did the Commissioner apply the appropriate legal test to determine whether disclosure of the edited Detailed Feasibility Notices could reasonably be expected to result in harm to the Applicant? and

iii. Was the Commissioner’s decision that disclosure of the edited Detailed Feasibility Notices would not reasonably harm the Applicant reasonable?

7The decision regarding Change Notice Agreements is not the subject of this request for judicial review.

BACKGROUND FACTS

The Agreement

8In 2006, the Applicant signed a ten year $250 million agreement with the Ministry of Transportation to design, develop and operate the PRESTO fare-card system in the Greater Toronto and Hamilton areas. In 2009, Metrolinx (an agency of the government of Ontario) assumed carriage of the agreement with the Applicant.

9Changes were made to the PRESTO Contract from time to time to deliver specific requirements for the TTC and Ottawa Carleton Transportation. There have been over 300 requested changes resulting in increased costs.

10Change Notices were provided for in the initial agreement between the parties and were created to initiate the change of a project scope of the main agreement or work orders.

11Detailed Feasibility Notices were provided in response to the Change Notices and provide a detailed description of the Applicant’s proposed solution.

The Request for Information

12Metrolinx is an institution governed by the Act.

13In September 2011, a member of the public made a request for the following information:

i. the Presto RFP;

ii. the Applicant’s Response to the RFP;

iii. the GTA Fare System Procurement Governance Agreement (referred to in the RFP);

iv. the GTA Fare System Operating Agreement (referred to in the RFP);

v. GTA Fare System Technical Specification;

vi. the Applicant’s Final Design Review Document;

vii. the Applicant’s Project Blueprint;

viii. intellectual property provided by The Applicant;

ix. the Software Escrow Agreement; and

x. all Change Notices or Change Orders issued in accordance with the Presto Agreement.

The Applicant’s Response to the Request for Disclosure

14After obtaining submissions from the Applicant and the requesting party, Metrolinx issued a decision granting access to the RFP, Change Orders, the Applicant’s Final Design Review Document, the Applicant’s Project Blueprint, the Detailed Feasibility Notices and the Change Order Agreements.

15Both the Applicant and the requesting party appealed this order to the Office of the Privacy Commissioner.

The Decision of the Commissioner

16After receiving submissions from all parties and considering approximately 17,000 pages of records, the Commissioner issued an Order that the following documents were to be produced:

i. the Change Notices;

ii. the Change Order Agreements; and

iii. parts of the Detailed Feasibility Notices, but not the substance of the Applicant’s proposed solutions.

COURT’S JURISDICTION

17Pursuant to s. 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, the Divisional Court has jurisdiction to grant any relief that an applicant would be entitled to in: (1) proceedings by way of an application for an order in the nature of mandamus, prohibition or certiorari, or (2) proceedings by way of an action for a declaration or for an injunction or both in relation to the exercise, refusal to exercise, or proposed or purported exercise of a statutory power.

STANDARD OF REVIEW

18The parties agree that the standard of review to be applied to the Commissioner’s interpretation and application of sections 17 and 53 of the Act is reasonableness. (Ontario (Workers' Compensation Board) v. Ontario (Assistant Information & Privacy Commissioner), 1998 7154 (ON CA), 41 O.R. (3d) 464 (C.A.); Canadian Medical Protective Association v. Loukidelis (2008), 2008 45005 (ON SCDC), 298 D.L.R. (4th) 134 at para. 39 (Div. Ct.)).

19The reasonableness standard was articulated in New Brunswick (Board of Management) v. Dunsmuir 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47:

A court conducting a review for reasonableness inquiries into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

ANALYSIS AND CONCLUSION

1) Was the Commissioner’s decision that Change Notices and Change Notice Agreements were not supplied by the Applicant reasonable?

20It is agreed that the provisions of a contract negotiated between a government institution and another party have generally been treated as mutually generated rather than supplied by a third party within the meaning of the Act. In Boeing Co. v. Ontario (Ministry of Economic Development and Trade, 2005 24249 (ON SCDC), [2005] O.J. No. 2851 Swinton J. held that,

information in a contract is typically the product of a negotiation process between the parties ... and will not normally qualify as having been “supplied”… [The Commissioner’s conclusion] that complex contracts were the result of negotiations was reasonable.

21There are two exceptions to this rule: “inferred disclosure” which applies where disclosure would permit accurate inference to be made regarding non-negotiated confidential information supplied by the third party to the institution, and “immutability” which applies to information that is not susceptible to change such as the philosophy of a business or sample products.

22The Applicant submitted that the Change Notices and Detailed Feasibility Notices were exempt from disclosure as:

i. although the Change Notices templates were created by Metrolinx, “in practice the Applicant provided most of the Change Notice content to explain how a particular solution will approximate the information contained in a CN.” Moreover, detailed pricing in the Change Notices provides accurate inferences regarding the Detailed Feasibility Notices in which there is a detailed description of a particular solution; and

ii. disclosure of the Change Order Notices would permit a competitor to draw accurate inferences as to the Applicant’s pricing and their model of doing business globally which is unique and not susceptible to change.

23Metrolinx took the position that the information in the Change Notices was authored or compiled by it and “was either not supplied by the third party appellant [the Applicant] or they operate to explain and describe changes to the negotiated contract, including changes to the total price of the contract.” As such they were to be disclosed in their entirety.

24Metrolinx took the position that partial access should be granted to the Detailed Feasibility Notices, but that technical and financial data proprietary to the Applicant would be removed before disclosure to the requester.

25The Commissioner found that the Change Notices,

were not supplied by the third party appellant to Metrolinx. In fact, Metrolinx supplied these records to the third party appellant for the purpose of making changes to the existing contract.

26The Commissioner found that the Change Notices are “the product of negotiations between Metrolinx and the Applicant… about how the third party Applicant and Metrolinx will fulfill the contract, setting out contractual obligations”. As such, they were “supplied” by Metrolinx within the meaning of the Act and should be disclosed.

27The Commissioner concluded at para 57 of her reasons that,

… there is no information in these records which qualifies for the immutability or inferred disclosure exception. As these records were not “supplied” for the purposes of section 17(1) and as no other exemption have been claimed with respect to these records, I order Metrolinx to disclose the change notices to the Applicant.

Conclusion Regarding the First Issue

28The Commissioner considered the arguments raised by the parties, the decision in Boeing that, “information in a contract is typically the product of a negotiation process between the parties ... and will not normally qualify as having been “supplied”, and the fact that it was agreed that some information was provided by Metrolinx. (The Applicant’s position was that it “provided most of the Change Notice content”.)

29The Commissioner reasonably concluded that the records in question were not “supplied” by the Applicant within the meaning of the Act and the documents did not fit within the exceptions of inferred disclosure or immutability.

30In oral submissions before this Court, the Applicant argued that although some information in the Change Notices was provided by Metrolinx or its predecessor, to the extent information was redacted in the Detailed Feasibility Notices it should also be redacted from the Change Notices as to do otherwise would be unreasonable.

31We do not accept this submission for the following reasons:

i. The Detailed Feasibility Notices are more detailed than the Change Notices. They contain information about the order and methodology that is not included in the Detailed Feasibility Notices. As such, the fact that information in the Detailed Feasibility Notices is protected does not necessarily mean that the portion of information in the Change Notices that is also found in the Detailed Feasibility Notices is necessarily also protected;

ii. The Applicant stated that “most” of the information in the Change Notices was supplied by it. The Applicant was given the opportunity to explain and provide detailed information to the Commissioner before she prepared her decision and chose not to articulate what information in the Change Notices came from the Applicant and why that information in the Change Notices should be protected from disclosure;

iii. Thereafter, Metrolinx provided information to the Commissioner suggesting that the documents in issue on this Application be produced and why. The Applicant was invited by the Commissioner to respond to the Metrolinx submission and chose not to and

iv. The Commissioner found that the Change Notices were not supplied by the Applicant with the meaning of the Act, which means that they are not exempt from disclosure whereas the Detailed Feasibility Notices were supplied by the Applicant.

32The Applicant made no submissions on the issues of inferred disclosure and immutability exceptions before this Court.

33For these reasons, we consider the Commissioner’s decision to be reasonable.

2. Did the Commissioner apply the wrong legal test to determine whether disclosure of records could reasonably be expected to result in harm to the Applicant?

34The Commissioner found that the Detailed Feasibility Notices satisfied two to the three prongs of the test for exemption from disclosure set out in section 53 of the Act: that is, the Detailed Feasibility Notices are commercial documents supplied in confidence “to detail how Accenture will implement a change. The costs associated with implementing the change are also provided by Accenture in a Detailed Feasibility Notice.”

35The Commissioner therefore considered the third and final prong of the test which is whether disclosure of the Detailed Feasibility Notices could reasonably be expected to result in harm to the Applicant within the meaning of section 53 of the Act. The factors to be considered as set out in section 17 (1) of the Act include,

(a) significant prejudice to the competitive position or significant interference with the contractual or other negotiations of a person, group of persons, or organization;

(b) similar information no longer being supplied to the institution where it is in the public interest that similar information continue to be so supplied; or

(c) undue loss or gain to any person, group, committee or financial institution or agency.

36In her decision at paragraphs 67 and 68, the Commissioner found that in respect of the documents ordered to be disclosed,

the institution and/or third party must provide ‘detailed and convincing’ evidence to establish a ‘reasonable expectation of harm’. Evidence amounting to speculation of possible harm is not sufficient. (Ontario (Workers’ Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 1998 7154 (ON CA), 41 O.R. (3d) 464 (C.A.)

The failure of a party resisting disclosure to provide detailed and convincing evidence will not necessarily defeat the claim for exemption where harm can be inferred from other circumstances. However, only in exceptional circumstances would such a determination be made on the basis of anything other than the records at issue and the evidence provided by a party discharging its onus.

37The Applicant claims that the Commissioner used the wrong legal test to determine whether there was a reasonable expectation of harm to the Applicant. The Applicant cited the case of Ontario (Attorney General) v. Pascoe, 2002 30805 (OCA) wherein Morden J.A. for the court noted at paragraphs 5 and 6 that,

…we think that reference to an evidentiary standard of “detailed and convincing evidence” is too demanding to be realistically appropriate. What is required to satisfy or persuade the Commissioner, on the balance of probabilities, will depend on the circumstances of a case and the issues arising in it.

38The court went on however to state that,

Having regard for the record before the Commissioner, we do not think that in the present case the formula used in the Divisional Court’s reasons resulted in any material error. There was a distinct paucity of evidence before the Commissioner on which she could be satisfied or persuaded that the substantive test had been met. Accepting that the proper standard of review on application for judicial review is that of reasonableness, we are satisfied that her decision that the information in question was not personal information could not be said to be unreasonable.

39We note that in the recent case of Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), 2014 SCC 31, [2014] 1 SCR 674, the Court cited the test in Merck Frosst Canada ltd. v. Canada (Health), 2012 SCC 3 [2012] 1 S.C.R. 23 at 197-199 to determine whether disclosure of a document could reasonably be expected to result in harm to a party. That passage reads as follows:

“[The] reasonable expectation of probable harm” formulation [is] … An institution must provide evidence “well beyond” or “considerably above” a mere possibility of harm …. This inquiry of course is contextual and how much evidence and the quality of evidence needed to meet this standard will ultimately depend on the nature of the issue and “inherent probabilities or improbabilities or the seriousness of the allegations or consequences”.

Conclusion Regarding the Second Issue

40What these decisions make clear is that the quality of the evidence that must be produced to satisfy the existence of a reasonable expectation of probable harm depends on the context in which the decision is being made. In Pascoe, the documents at issue related to personal information that could reveal the identity of the affected person. The documents at issue here are of a very different nature.

41In this case, given the nature of the information at issue, the Commissioner found that to satisfy her that there was a reasonable expectation of probable harm the evidence before her had to be detailed and convincing. There is nothing unreasonable about this conclusion. Further, there can be no suggestion that the Commissioner in this case used the “detailed and convincing” formulation to create a different standard of proof than the applicable one of balance of probabilities.

42In any event, for the reasons that follow, I am of the view that the formulation used by the Commissioner did not result in any material error.

3. Did the Commissioner reasonably conclude that disclosure of the records would not harm the Applicant?

43The Applicant claims that disclosing the records would result in several significant harms that include:

i. providing a competitor with a very accurate picture of the pricing structure of the solutions and would allow a competitor to understand the corresponding solution;

ii. enabling a competitor to piece together various isolated records to understand the Applicant’s methodology;

iii. eroding the value of the Applicant’s expertise and intellectual property, giving competitors free access to the Applicant’s work;

iv. arming the Applicant’s competitors with an ability to anticipate and undercut the Applicant’s future bids; and

v. creating a chilling effect by deterring the Applicant, and the entire industry, from contracting with government institutions.

44The Applicant further submits that, “Given the somewhat technical nature of the many records in issue, harm may not have been immediately apparent to the adjudicator from those records alone. In this case, however, the adjudicator should have considered the surrounding facts and circumstances…” The Applicant relied on the decision of Rothstein J. in Canada (Information Commissioner) v. Canada (Prime Minister), [1993] 1 F.C.R. 427 where he held at para. 122, that allegations of harm from disclosure must be considered in light of all relevant circumstances.

45The Applicant provided no specifics to support these assertions nor did it provide information from which to make inference arising from surrounding circumstances.

46Moreover, the Applicant’s reliance on Rothstein J.’s decision in Canada (Information Commissioner) v. Canada (Prime Minister) is selective. While Rothstein J. indicated that context is important, he also noted that,

The Court must be given an explanation of how or why the harm alleged would result from disclosure of specific information. If it is self-evident as to how and why harm would result from disclosure, little explanation need be given. Where inferences must be drawn, or it is not clear, more explanation would be required. The more specific and substantiated the evidence, the stronger the case for confidentiality. The more general the evidence, the more difficult it would be for a court to be satisfied as to the linkage between disclosure or particular documents and the harm alleged.

Descriptions of possible harm, even in substantial detail, are insufficient in themselves. At the least, there must be a clear and direct linkage between the disclosure of specific information and the harm alleged.

47In response to the Applicant’s submissions to the Commissioner, Metrolinx stated that the portions of the Detailed Feasibility Notices to be disclosed do not create a reasonable expectation of probable harm. They do not disclose the specific technical solutions used by the Applicant to carry out the change.

48When asked to reply, the Applicant stated that “we do not have any additional comments at this time.”

49The Commissioner therefore prepared the Order in which she held that the Applicant had not made out its assertion that disclosure could reasonably be expected to result in harms enumerated in the statute and there was no overriding public interest that would outweigh the purpose of the exemption.

Conclusion regarding the third issue

50The Commissioner was not prepared to infer harm from the disclosure of information that was general and contained no concrete examples. The Commissioner is not required to accept theories of potential harm that are vague or devoid of a proper factual basis. Accordingly, the Commissioner made the reasonable finding that the risk of harm was not well beyond or considerably above a mere possibility of harm.

51The Applicant has the onus of establishing the alleged harms and failed to do so. The Commissioner therefore reasonably concluded at paragraphs 87 and 88 that,

The information that Metrolinx proposes to withhold consists of detailed financial, commercial and technical information, which would reasonably be expected to prejudice significantly the competitive position of the third party Applicant, if disclosed, as this information could be used by a competitor to undermine the third party Applicant. Therefore, I find that this information is exempt from disclosure under section 17(1)(a).

However, I also find that the portions of the detailed feasibility notices and attachments that Metrolinx proposes to disclose consist of information that is general in nature or that reveals the total costs of a given change to the contract. I am not satisfied that disclosure of this information could reasonably be expected to result in any of the harms set out in sections 17(1)(a),(b) or(c), nor have I been provided with sufficient evidence to support such a finding, Consequently, I find that this information does not qualify for exemption under section 17(1). I uphold Metrolinx’s decision with respect to the detailed feasibility notices and attachments and order it to disclose them to the Applicant, as set out in Metrolinx’s indices of records. In making this finding, I dismiss the third party Applicant’s appeal.

Conclusion Regarding the Application

52For these reasons, were find the Commissioner’s Order to be reasonable. The Application is therefore dismissed.

53On the agreement of all parties, there shall be no order as to costs.

Thorburn J.

Sachs J.

LeMay J.

Released: March 7, 2016

2016 ONSC 1616

DIVISIONAL COURT FILE NO.: DC-15-154