Corporation of the Town of Arnprior v. Information and Privacy Commissioner of Ontario et al.

[Indexed as: Arnprior (Town) v. Ontario (Information and Privacy Commissioner)]

Ontario Reports

Ontario Superior Court of Justice,

Divisional Court,

Dambrot, Horkins and Arrell JJ.

April 29, 2016

130 O.R. (3d) 298 | 2016 ONSC 2904

Case Summary

Administrative law — Freedom of information — Exemptions to disclosure — Respondent making requests under Municipal Freedom of Information and Protection of Privacy Act for records relating to assessment of town's IT system, records relating to town's electronic records storage initiative and service contracts with IT suppliers — Adjudicator reasonably finding that exemptions to disclosure in ss. 8(1)(e), 8(1)(i), 10(1), 11(a), 11(f) and 13 did not apply and that exemption in s. 7(1) applied to some but not all records — Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56, ss. 8, 10, 11, 13. [page299]

The respondent made a request under the Municipal Freedom of Information and Protection of Privacy Act for records relating to an assessment of the applicant town's IT system. The applicant granted partial access to the requested records but denied access to portions of the records, relying on the exemptions in ss. 7, 8(1)(e) , 8(1)(i), 10(1), 11(a), 11(f) and 13 of the Act. The respondent made a second request for disclosure of (a) records relating to the applicant's electronic records storage initiative and (b) service contracts with existing suppliers of IT services. The applicant found no records in relation to the first part of the request, identified three records responsive to the second part of the request, and denied access to portions of them, invoking the same exemptions as in the previous decision. The respondent appealed both decisions. The adjudicator held that the exemptions in ss. 8(1)(e), 8(1)(i), 10(1), 11(a), 11(f) and 13 did not apply and that the exemption in s. 7(1) applied to some portions of the records. The applicant applied for judicial review of those rulings.

Held, the application should be dismissed.

The adjudicator reasonably found that the mandatory exemption in s. 10(1) of the Act for third party information did not apply as the applicant had failed to establish that disclosure of the records would give rise to a reasonable expectation that one of the harms specified in paragraphs (a), (b), (c) or (d) of s. 10 would occur.

The adjudicator's conclusion that the exemption in s. 7(1) of the Act for advice and recommendations did not apply to all of the records was reasonable. Section 7(2)(a) of the Act directs that an institution cannot claim the exemption for a record that contains "factual material" and must sever as much of that information as possible, which the adjudicator did.

The adjudicator's finding that the exemption in s. 8(1)(i) of the Act (security) did not apply was reasonable. There was an onus on the applicant to establish that the exemption applied, and its submissions to the adjudicator that "given the world we live in . . . protection of confidential information is crucial" and "given the constant reports of security breaches on government computer systems . . . cyber-attacks . . . is a reality for . . . municipalities" did not satisfy that onus.

The adjudicator reasonably concluded that the exemptions in s. 11(a) (valuable government information) and s. 11(f) (economic and other interests) did not apply. She was not satisfied that the information "belonged" to the applicant. It was reasonable for her to define "belonged to" as "having a proprietary interest either in a traditional intellectual property sense . . . or in the sense that the law would recognize a substantial interest in protecting the information from misappropriation from another party".

Cases referred to

John Doe v. Ontario (Finance), [2014] 2 S.C.R. 3, [2014] S.C.J. No. 36, 2014 SCC 36, 457 N.R. 40, 320 O.A.C. 135, 373 D.L.R. (4th) 601, 2014EXP-1471, J.E. 2014-826, EYB 2014-236837, 69 Admin. L.R. (5th) 289, 239 A.C.W.S. (3d) 1048; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, [2003] S.C.J. No. 17, 2003 SCC 20, 223 D.L.R. (4th) 577, 302 N.R. 1, J.E. 2003-713, 257 N.B.R. (2d) 207, 48 Admin. L.R. (3d) 33, 31 C.P.C. (5th) 1, 121 A.C.W.S. (3d) 172; Miller Transit Ltd. v. Ontario (Information and Privacy Commissioner) (2013), 118 O.R. (3d) 290, [2013] O.J. No. 5462, 2013 ONSC 7139, 18 M.P.L.R. (5th) 18, 317 O.A.C. 150, 235 A.C.W.S. (3d) 1108 (Div. Ct.); Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. 708, [2011] S.C.J. No. 62, 2011 SCC 62, EYB 2011-199662, 2012EXP-65, 2012EXPT-54, J.E. 2012-46, D.T.E. 2012T-7, 424 N.R. 220, 340 D.L.R. (4th) 17, 317 Nfld. & P.E.I.R. 340, [2012] CLLC Â220-008, 213 L.A.C. (4th) 95, 38 Admin. L.R. (5th) 255, 97 C.C.E.L. (3d) 199, 208 A.C.W.S. (3d) 435; [page300] Ontario Lottery and Gaming Corp. v. Ontario (Information and Privacy Commissioner), [2001] O.J. No. 2552 (Div. Ct.); Ontario (Ministry of Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), [2014] 1 S.C.R. 674, [2014] S.C.J. No. 31, 2014 SCC 31, 457 N.R. 2, 2014EXP-1308, J.E. 2014-729, EYB 2014-236192; Ontario (Workers' Compensation Board) v. Ontario (Assistant Information & Privacy Commissioner) (1998), 1998 7154 (ON CA), 41 O.R. (3d) 464, [1998] O.J. No. 3485, 164 D.L.R. (4th) 129, 112 O.A.C. 121, 9 Admin. L.R. (3d) 224, 82 C.P.R. (3d) 166, 82 A.C.W.S. (3d) 213 (C.A.); R. v. M. (R.E.), [2008] 3 S.C.R. 3, [2008] S.C.J. No. 52, 2008 SCC 51, 235 C.C.C. (3d) 290, 83 B.C.L.R. (4th) 44, EYB 2008-148153, J.E. 2008-1861, [2008] 11 W.W.R. 383, 260 B.C.A.C. 40, 60 C.R. (6th) 1, 380 N.R. 47, 297 D.L.R. (4th) 577, 79 W.C.B. (2d) 321

Statutes referred to

Judicial Review Procedure Act, R.S.O. 1990, c. J.1, ss. 2, 6 [as am.]

Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56 [as am.], ss. 7, (1), (2)(a), 8(1)(e), (i), 10, (1), (a), (b), 11, (a), (f), 13 [as am.], 42

APPLICATION for judicial review of two rulings of an adjudicator of the Office of the Information and Privacy Commissioner.

pJ.E. Summers, for applicant.

L. Murray, for respondents.

The judgment of the court was delivered by

ARRELL J.: —

Introduction

[1] The Corporation of the Town of Arnprior (the "applicant") applies for judicial review of the two rulings of the "adjudicator" of the Office of the Information and Privacy Commissioner of Ontario requiring the applicant to produce certain records.

[2] The applicant seeks an order in the nature of certiorari quashing the rulings of the adjudicator and requests either

(a) an order confirming the records in question are exempt from disclosure; or

(b) an order returning the matter to the Information and Privacy Commissioner (the "IPC") for a new hearing.

[3] The respondent IPC requests that this application for judicial review be dismissed or, should this application be allowed and should there remain outstanding issues for determination by the IPC, that those issues be remitted back to it. [page301]

Facts

[4] This application for judicial review arises from the respondent William Skinner's access to information requests made under the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56 (the "Act") for records relating to the Town of Arnprior's (the "town") IT management.

[5] In July 2013, the Arnprior Chronicle-Guide newspaper published an article entitled "IT Issues to Put Town Information at Risk". The article detailed numerous problems with the town's IT system which had been assessed and which might cost in excess of $100,000 to correct. Shortly after the article was published, Mr. Skinner made a request for access to records relating to this assessment of the town's IT system which had been performed by a named company.

[6] The town granted partial access to these records and denied access to portions of them under ss. 7 (advice and recommendations), 8(1)(e) (endanger life or safety), 8(1)(i) (security), 10(1) (third party information), 11(a) (valuable government information), 11(f) (economic and other interests) and 13 (danger to safety or health) of the Act.

[7] Mr. Skinner appealed the town's decision to deny access to portions of the records to the IPC. These records are the subject of the first appeal.

[8] In October 2013, Mr. Skinner made a second request to the town under the Act for disclosure of (1) records relating to the town's electronic records storage initiative; and (2) service contracts with existing suppliers for services including internet services, maintenance of existing hardware and firewall services.

[9] The town did not find records in relation to the first part of this request. It identified three records responsive to the second part of the request and denied access to portions of them under ss. 7 (advice and recommendations), 8(1)(e) (endanger life or safety), 8(1)(i) (security), 10(1) (third party commercial information), 11(a) (valuable government information), 11(f) (economic and other interests) and 13 (danger to safety or health) of the Act.

[10] Mr. Skinner appealed the town's decision to deny access to portions of those records to the IPC and also sought a finding that the town failed to undertake a proper search for responsive records. These records are the subject of the second appeal before this court.

First appeal

[11] In Order MO-3174-I dated March 30, 2015, the adjudicator found that the mandatory exemption at s. 10(1) did not [page302] apply; the discretionary exemption at s. 7(1) applied to exempt portions of the records from disclosure; the discretionary exemptions at ss. 8(1)(e), 8(1)(i), 11(a), 11(f) and 13 did not apply; and that the town must re-exercise its discretion with respect to the severances made to portions of the records pursuant to s. 7(1) of the Act.

Second appeal

[12] In Order MO-3175 dated March 30, 2015, the adjudicator found that the mandatory exemption at s. 10(1) did not apply; the discretionary exemptions at ss. 7(1), 8(1)(e), 8(1)(i), 11(a), 11(f) and 13 did not apply; and that the town's search for records responsive to part 1 of the request was reasonable. The adjudicator ordered the town to disclose the records to the appellant and dismissed the aspect of the appeal dealing with the reasonableness of the town's search.

[13] The town applied to the adjudicator for a reconsideration of both orders. The adjudicator found that the basis for reconsideration raised by the town did not establish that there was a fundamental defect in the adjudication process and that, accordingly, the grounds for reconsideration had not been established with respect to either of the two orders. The reconsideration request was therefore dismissed.

[14] The adjudicator stayed her orders pending the outcome of the judicial review before this court. It should be noted that these records are now quite dated with the most recent being dated 2011, and some much older.

This Court's Jurisdiction

[15] The Divisional Court's jurisdiction to hear applications for judicial review flows from ss. 2 and 6 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. Pursuant to those provisions, 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

[16] The parties agree that the standard of review for the IPC's interpretation and application of the various exemptions of the Act is reasonableness. The IPC is owed deference in interpreting and applying its enabling statute: see John Doe v. Ontario (Finance), [2014] 2 S.C.R. 3, [2014] S.C.J. No. 36, 2014 SCC 36, at para. 17. [page303]

[17] The Supreme Court of Canada has stated clearly the standard of reasonableness this court must apply and the burden on the applicant in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, [2003] S.C.J. No. 17, 2003 SCC 20, at para. 48:

(2) What Does the Reasonableness Standard Require of a Reviewing Court?

Where the pragmatic and functional approach leads to the conclusion that the appropriate standard is reasonableness simpliciter, a court must not interfere unless the party seeking review has positively shown that the decision was unreasonable (see Southam, supra, at para. 61). In Southam, at para. 56, the Court described the standard of reasonableness simpliciter:

An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it.

(Emphasis added)

See, also, Miller Transit Ltd. v. Ontario (Information and Privacy Commissioner) (2013), 118 O.R. (3d) 290, [2013] O.J. No. 5462, 2013 ONSC 7139 (Div. Ct.), at para. 23.

[18] In Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. 708, [2011] S.C.J. No. 62, 2011 SCC 62, at paras. 14-16, the court set out how an appellate court should approach the task of assessing the reasons of the adjudicator as follows:

Read as a whole, I do not see Dunsmuir as standing for the proposition that the "adequacy" of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses -- one for the reasons and a separate one for the result (Donald J.M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at 12:5330 and 12:5510). It is a more organic exercise -- the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. This, it seems to me, is what the Court was saying in Dunsmuir when it told reviewing courts to look at "the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes" (para. 47).

In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show "respect for the decision-making process of adjudicative bodies with regard to both the facts and the law" (Dunsmuir, at para. 48). This means that courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome.

Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result [page304] under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Service Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., 1973 191 (SCC), [1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.

Analysis

Section 10(1)

[19] The applicant argues that the adjudicator's finding that the mandatory exemption at s. 10(1) of the Act does not apply to the records is unreasonable. This section deals generally with interests of third parties and not the interests of the institution which is why it is a mandatory exemption rather than a discretionary one.

[20] The relevant portions of s. 10(1) state:

10(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, if 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 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.

[21] The adjudicator correctly ruled that for s. 10(1) to apply, the institution must satisfy all of a three-part test:

(1) the record must reveal information that is a trade secrete or scientific, technical, commercial, financial or labour relations information; and

(2) the information must have been supplied to the institution in confidence, either implicitly or explicitly; and

(3) the prospect of disclosure of the record must give rise to a reasonable expectation that one of the harms specified in paras. (a), (b), (c), or (d) of s. 10 will occur. The burden of proof is on the institution: [page305] see Ontario (Workers' Compensation Board) v. Ontario (Assistant Information & Privacy Commissioner) (1998), 1998 7154 (ON CA), 41 O.R. (3d) 464, [1998] O.J. No. 3485 (C.A.), at para. 22.

[22] The adjudicator concluded that parts 1 and 2 of the test were satisfied as the information was "commercial, financial, or technical in nature" and it was supplied in "confidence". However, the adjudicator was not satisfied that the town had supplied "detailed and convincing" evidence to establish a "reasonable expectation of harm". The adjudicator was alive to the fact that s. 10(1) was a mandatory exemption as she addressed those harms that she felt might possibly apply, even though the town had not specified which harms it felt might reasonably be expected to occur if the information was released. She was not satisfied on any of the submissions and evidence supplied by the town, and after reviewing the documents in question, that any of these potential harms could reasonably be expected to occur.

[23] The applicant submits that the adjudicator's analysis of the harm that disclosure of the records would cause under s. 10(1)(a) of the Act only focused on whether the disclosure would significantly prejudice the competitive position of the applicant. It is argued that s. 10(1)(a) also requires an analysis of whether the production of the information would interfere significantly with the contractual or other negotiations of a person, group of persons or organizations. The applicant submits that the adjudicator's failure to address this aspect of s. 10(1)(a) was unreasonable. I disagree.

[24] The adjudicator did primarily focus on the prejudice to the competitive position aspect of s. 10(1)(a) and found there was no evidence to support that harm. She found, however, after review of the documents in question that the affected party's proposal was very general in nature. There was nothing in the evidence or submissions presented by the town to the adjudicator to substantiate any type of significant interference with the contractual or other negotiations of a person, group of persons or organizations. The onus was on the town and it failed to produce such evidence. This was a reasonable conclusion based on the material before the adjudicator.

[25] The applicant further submits that the adjudicator failed to address s. 10(1)(b) of the Act. I disagree. The adjudicator did address this issue by concluding that based on the material submitted by the town, and not specifically enumerated, this harm could not possibly apply. It was open to her to make such a finding having reviewed the documents in question and having [page306] received no information from the town to prove otherwise. I would not give effect to this ground of appeal.

[26] In oral argument the applicant suggested that as this section was a mandatory exemption, there was a duty on the adjudicator to address and analyze the documents under all of the subsections of s. 10 of the Act, and the adjudicator's failure to say she did that is unreasonable. I disagree. In my view, the onus was on the applicant to submit evidence applicable to the appropriate subsection which in its view applied. It was not sufficient for the town to simply say all the subsections of s. 10 applied with nothing more, which is the situation in the case at bar. In any event, there was no evidence submitted to satisfy the adjudicator that any of the harms set out in s. 10 applied and she did analyze those that she thought might have some possibility of application and rejected them. She was not required to elaborate on harms she had already concluded had no possibility of being applicable. This was a reasonable conclusion for her to draw based on the material before her.

[27] In R. v. M. (R.E.), [2008] 3 S.C.R. 3, [2008] S.C.J. No. 52, 2008 SCC 51, the Supreme Court of Canada held, at paras. 15 to 17, that reasons must be sufficient to explain what the trial judge decided and why he made that decision. They should be read as a whole in the context of the evidence and arguments at trial. The object is not to show how the judge arrived at his conclusion in a "watch me think" fashion. What is required is a logical connection between the what -- the verdict -- and the why -- the basis for the verdict.

[28] Reasons are not intended to be and should not be read as a verbalization of the entire process engaged in by the trial judge in reaching a verdict: see R. v. M. (R.E.), at para. 18.

Section 7(1)

[29] The applicant submits that the adjudicator's finding that the discretionary exemption under s. 7(1) of the Act does not apply to the records is unreasonable. It is argued that she took too narrow a view of the definition of "advice" and "recommendations" in s. 7(1) of the Act when determining whether the disclosure of the records would reveal advice or recommendations of a consultant retained by the institution. The adjudicator failed to appreciate, says the applicant, that the factual material contained in the records formed the basis of the advice and recommendations given in the records and should have been exempted. The applicant relies on the Supreme Court of Canada's decision in John Doe v. Ontario (Finance), supra, in support of its position. That case dealt with policy papers prepared for [page307] the Minister of Finance of Ontario giving recommendations on the retroactivity and possible dates of corporate tax amendments. The adjudicator was well aware of this case as she cited para. 44, which set out the purposes for the exemption.

[30] Section 7(1) of the Act states:

7(1) A head may refuse to disclose a record where the disclosure would reveal advice or recommendations of an officer or employee of an institution or a consultant retained by an institution.

[31] The adjudicator made a detailed review of the section and cases decided under it. She reviewed the documents in question and the submissions of the parties and concluded that some of the information at issue did consist of advice or recommendations within the meaning of the exemption in s. 7(1), while some did not. She then went through a detailed analysis of each of the documents and set out her reasoning in coming to such a conclusion. She ordered the release of those documents that did not fall within the exemption. Her reasoning was thorough, logical and fair. It must be given deference and I would not interfere with her conclusion as it is reasonable based on the material before her.

[32] The applicant also argues that Ontario (Finance) stands for the authority that factual material, which can be disclosed without revealing any advice or recommendations, is exempt from disclosure simply because it appears in a document which may also contain advice or recommendations. Section 7(2)(a) of the Act directs that an institution cannot claim this exemption for a record that contains "factual material" and must sever as much of such information as possible, which the adjudicator has done.

Section 8(1)(i)

[33] The applicant further submits that the adjudicator limited her focus and comments on the representations made, when analyzing s. 8(1)(i) of the Act, but failed to provide any analysis of the documents themselves. The applicant submits that it was incumbent on the adjudicator to review the documents and provide an analysis as to why the exemption did not apply and her failure to do so was unreasonable.

[34] The applicant also submits that it exercised its discretion to withhold its records relating to information about the maintenance and operation of its computer system, as it believed that their disclosure could reasonably be expected to endanger the security of its system and the information contained therein. Yet, the adjudicator overruled the applicant's exercise of its discretion on the basis of the brevity of the applicant's representations and failed to consider whether the disclosure of the records could [page308] reasonably be expected to endanger the safety and security of the computer system.

[35] In addition, the applicant submits that the adjudicator failed to properly analyze and determine whether the applicant properly exercised its discretion. It argues that if the adjudicator was not satisfied that the applicant had properly exercised its discretion, it should have sent the matter back to the applicant and directed it to make its decision based on proper considerations. Failure to do so constitutes a fundamental defect in the adjudication process and was unreasonable in the circumstances.

[36] Section 8(1)(i) of the Act states as follows:

8(1) A head may refuse to disclose a record if the disclosure could reasonably be expected to,

(i) endanger the security of a building or the security of a vehicle carrying items, or of a system or procedure established for the protection of items, for which protection is reasonably required[.]

[37] Section 42 of the Act clearly states that the onus of proving that the exemption should apply is on the institution. There is no onus on the adjudicator to establish that the exemption does not apply. The town's submission to the adjudicator was basically that "given the world we live in . . . protection of confidential information is crucial" and "given the constant reports of security breaches on government computer systems . . . cyber-attacks . . . is a reality for . . . municipalities. The service contracts for the town include detailed descriptions of the hardware and software infrastructure and release of this information . . . will leave the town vulnerable and exposed to both cyber-attack and/or physical attacks."

[38] The adjudicator, upon review of the documents and submissions of the town, was not persuaded that the disclosure of the information could reasonably be expected to endanger the lives or physical safety of any individuals"let alone that such expectation of harm is well beyond the merely possible or speculative". As well, she found that the town had not provided evidence to establish that the disclosure of the records would endanger the security of a building, vehicle, system or procedure. She further concluded that her review of the documents in issue did not persuade her that they could reasonably be expected to endanger any of the items enumerated in s. 8(1)(i) of the Act. It was open to the adjudicator to make such a finding based on the information provided to her and I would not give effect to this ground of appeal. I find the adjudicator's decision reasonable in these circumstances. [page309]

[39] The applicant's submission that the exercise of its discretion under s. 8(1)(i) should not be interfered with is only engaged if the adjudicator concluded the exemption under the section applied, which she did not do: see Ontario (Ministry of Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), [2014] 1 S.C.R. 674, [2014] S.C.J. No. 31, 2014 SCC 31, at paras. 44, 45.

Section 11

[40] The applicant submits that the adjudicator's finding that the discretionary exemption in s. 11 of the Act does not apply to the records in issue is unreasonable.

[41] The town argued before that s. 11(a) applied and it reads as follows:

11. A head may refuse to disclose a record that contains,

(a) trade secrets or financial, commercial, scientific or technical information that belongs to an institution and has monetary value or potential monetary value[.]

[42] The adjudicator properly set out the three-part test that the town had the burden of proving under s. 11(a) as follows:

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

(2) does the information belong to an institution; and

(3) does the information have monetary value or potential monetary value?

[43] The adjudicator confirmed that she had already found that part 1 of the test had been met as the information was commercial, financial or technical. However, she did not find that the town had satisfied her by evidence or submissions that the information "belonged" to it as set out in part 2 of the test under s. 11(a). Since all three parts of the test must be met, she concluded that the exemption did not apply.

[44] The applicant submits that the adjudicator added a further legal test into the statute by stating that in order for the exemption to apply, the records must "belong to" the applicant and by defining these words as having a "proprietary interest either in a traditional intellectual property sense . . . or in the sense that the law would recognize a substantial interest in protecting the information from misappropriation from another party". The applicant submits that it was unreasonable for the adjudicator to define "belongs to" in that manner and instead [page310] she should have defined the term as does the Oxford Dictionary to mean "the property of".

[45] The definition used by the adjudicator was upheld as proper in Ontario Lottery and Gaming Corp. v. Ontario (Information and Privacy Commissioner), [2001] O.J. No. 2552 (Div. Ct.), where the court stated [at para. 1] that "the Adjudicator gave to the legislation an interpretation which it could reasonably bear".

[46] The adjudicator found that the town did not elaborate beyond its submission that the IT platform is "commercially valuable information". She concluded that the town had provided no evidence that it had a proprietary interest in the information from an intellectual property sense. A third party may well have had such an interest but there was no evidence the town did. This was a reasonable conclusion for the adjudicator to draw based on the information before her. In any event there appears to be little difference between the definition used by the adjudicator and that suggested by the applicant -- certainly not enough for this court to consider the interpretation of the adjudicator to be unreasonable.

Conclusion

[47] I conclude that the orders of the adjudicator were not unreasonable and the application is dismissed. Given the public nature of this matter, there is no order as to costs.

Application dismissed.

End of Document