Miller Transit Limited v. Information and Privacy Commissioner of Ontario et al.

[Indexed as: Miller Transit Ltd. v. Ontario (Information and Privacy Commissioner)]

Ontario Reports

Ontario Superior Court of Justice, Divisional Court, Himel, Sachs and Corbett JJ.

December 2, 2013

118 O.R. (3d) 290 | 2013 ONSC 7139

Case Summary

Administrative law — Freedom of information — Exemptions from disclosure — Adjudicator finding that third party exemption under s. 10(1) of Municipal Freedom of Information and Protection of Privacy Act did not apply to contract for bus services between applicant and municipality as information was mutually generated rather than supplied by applicant to municipality — Adjudicator finding that information did not fall within "immutability" or "informed disclosure" exceptions to presumption of mutual generation — Adjudicator's decision reasonable — Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56, s. 10(1).

The applicant entered into a contract with a municipality for the provision of bus services. A union asked the municipality for a copy of the parts of the contract. The applicant claimed that the third party exemption in s. 10(1) of the Municipal Freedom of Information and Protection of Privacy Act applied to the record sought. The adjudicator found that the contents of the contract contained "financial, commercial and technical information" for the purposes of s. 10(1) of the Act but that it was not "supplied" by the applicant to the municipality. Rather, it was mutually generated information created through the process of negotiation. He also found that the information did not fall within the "immutability" or "informed disclosure" exceptions to the presumption of mutual generation. He ordered disclosure of the information sought. The applicant applied for judicial review of that decision.

Held, the application should be dismissed.

The standard of review of an adjudicator's interpretation and application of the exemption set out in s. 10(1) of the Act is reasonableness. The adjudicator's finding that the information sought was generated through the negotiation process and thus could not be said to have been "supplied" within the meaning of s. 10(1) was reasonable. 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. A party asserting that the exemption applies to contractual information must show on a balance of probabilities that the "inferred disclosure" or "immutability" exception applies. The applicant failed to provide sufficient evidence to establish either of the exceptions to the general rule. The adjudicator's decision that the information did not fall within one of those exceptions was reasonable.

Boeing Co. v. Ontario (Ministry of Economic Development and Trade), [2005] O.J. No. 2851, 200 O.A.C. 134, 2005 24249, 140 A.C.W.S. (3d) 601 (Div. Ct.); Merck Frosst Canada Ltd. v. Canada (Health), [2012] 1 S.C.R. 23, [2012] S.C.J. No. 3, 2012 SCC 3, 426 N.R. 200, 2012EXP-388, J.E. 2012-214, 99 C.P.R. (4th) 65, 342 D.L.R. (4th) 257, 210 A.C.W.S. (3d) 385, consd

Other cases referred to

Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Assn., [2011] 3 S.C.R. 654, [2011] S.C.J. No. 61, 2011 SCC 61, 2011EXP-3798, J.E. 2011-2083, 424 N.R. 70, 339 D.L.R. (4th) 428, 28 Admin. L.R. (5th) 177, 52 Alta. L.R. (5th) 1, [2012] 2 W.W.R. 434, 519 A.R. 1, 208 A.C.W.S. (3d) 434; Canada Post Corp. v. Public Service Alliance of Canada, [2011] 3 S.C.R. 572, [2011] S.C.J. No. 57, 2011 SCC 57, 423 N.R. 117, 27 Admin. L.R. (5th) 1, 339 D.L.R. (4th) 1, 95 C.C.E.L. (3d) 246, 73 C.H.R.R. D/52, 207 A.C.W.S. (3d) 539, varg [2010] F.C.J. No. 272, [2011] 2 F.C.R. 221, 2010 FCA 56, 399 N.R. 127, [2010] CLLC Â230-015, 15 Admin. L.R. (5th) 157, 70 C.H.R.R. D/302, 2011EXP-3789, 2011EXPT-2178; Canadian Medical Protective Assn. v. John Doe, 2008 45005 (ON SCDC), [2008] O.J. No. 3475, 88 Admin. L.R. (4th) 68, 298 D.L.R. (4th) 134, 241 O.A.C. 346, 169 A.C.W.S. (3d) 234 (Div. Ct.); Canadian Pacific Railway v. British Columbia (Information and Privacy Commissioner), [2002] B.C.J. No. 848, 2002 BCSC 603, 113 A.C.W.S. (3d) 4; Construction Labour Relations v. Driver Iron Inc., [2012] 3 S.C.R. 405, [2012] S.C.J. No. 65, 2012 SCC 65, 228 C.L.R.B.R. (2d) 24, 437 N.R. 202, 2012EXP-4181, 2012EXPT-2378, J.E. 2012-2223, D.T.E. 2012T-839, EYB 2012-214614, 43 Admin. L.R. (5th) 1, 352 D.L.R. (4th) 487, 539 A.R. 17, [2013] CLLC Â220-003, [2012] Alta. L.R.B.R. 182, 221 A.C.W.S. (3d) 248; Dagg v. Canada (Minister of Finance), 1997 358 (SCC), [1997] 2 S.C.R. 403, [1997] S.C.J. No. 63, 148 D.L.R. (4th) 385, 213 N.R. 161, J.E. 97-1384, 46 Admin. L.R. (2d) 155, 72 A.C.W.S. (3d) 5; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 170 L.A.C. (4th) 1, 372 N.R. 1, 69 Imm. L.R. (3d) 1, 291 D.L.R. (4th) 577, 69 Admin. L.R. (4th) 1, 95 L.C.R. 65, D.T.E. 2008T-223, 164 A.C.W.S. (3d) 727; Grant Forest Products Inc. v. Caddigan, [2008] O.J. No. 2243, 2008 27474, 168 A.C.W.S. (3d) 4 (Div. Ct.); Kitchener (City) v. Ontario (Information and Privacy Commissioner), [2012] O.J. No. 2953, 2012 ONSC 3496, 293 O.A.C. 376 (Div. Ct.); 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; Mills v. Ontario (Workplace Safety and Insurance Appeals Tribunal), [2008] O.J. No. 2150, 2008 ONCA 436, 237 O.A.C. 71, 168 A.C.W.S. (3d) 679; Newfoundland & Labrador Nurses' Union v. Newfoundland & 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; Ontario (Ministry of Northern Development and Mines) v. Ontario (Assistant Information and Privacy Commissioner), 2004 15009 (ON SCDC), [2004] O.J. No. 163, 181 O.A.C. 251, 128 A.C.W.S. (3d) 422 (C.A.); Ontario (Workers' Compensation Board) v. Ontario (Assistant Information and 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.); Order MO-1706, Peel District School Board, [2003] O.I.P.C. No. 238; Order MO-2738; York (Municipality) (Re), [2012] O.I.P.C. No. 102; Vaughan (City) v. Ontario (Information and Privacy Commissioner) (2011), 109 O.R. (3d) 149, [2011] O.J. No. 6147, 2011 ONSC 7082, 94 M.P.L.R. (4th) 182, 345 D.L.R. (4th) 180, 211 A.C.W.S. (3d) 458 (Div. Ct.); Volochay v. College of Massage Therapists of Ontario (2012), 111 O.R. (3d) 561, [2012] O.J. No. 3871, 2012 ONCA 541, 295 O.A.C. 164, 40 Admin. L.R. (5th) 307, 355 D.L.R. (4th) 518, 220 A.C.W.S. (3d) 240; Wall v. Ontario (Independent Police Review Office Director), [2013] O.J. No. 2624, 2013 ONSC 3312, 362 D.L.R. (4th) 687, 56 Admin. L.R. (5th) 108, 309 O.A.C. 252 (Div. Ct.)

Statutes referred to

Access to Information Act, R.S.C. 1985, c. A-1

Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, s. 17(1)

Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56, ss. 1, 4(1), 10(1)

APPLICATION for judicial review of a decision of an adjudicator of the Information and Privacy Commission.

Andrew J. Roman and Nafisah Chowdhury, for applicant.

Lawren Murray, for respondent Information and Privacy Commissioner of Ontario.

Simon Blackstone, for respondent Amalgamated Transit Union.

Catherine Virgo, for respondent Regional Municipality of York.

The judgment of the court was delivered by

[1] HIMEL J.: — Miller Transit Limited ("Miller Transit") applies for judicial review of Order MO-2738 dated May 24, 2012 [[2012] O.I.P.C. No. 102], of adjudicator Donald Hale of Ontario's Information and Privacy Commission (the "IPC adjudicator"). The IPC adjudicator ordered that certain parts of a bus services agreement between Miller Transit and the Regional Municipality of York ("York Region" or the "region") be publicly disclosed. He found that the third party exemption under s. 10(1) of the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56 ("MFIPPA" or the "Act") did not apply as the information was contained in a negotiated contract and, therefore, was mutually generated, not supplied to York Region by Miller Transit. The IPC adjudicator also concluded that the information did not fall within the "immutability" or "inferred disclosure" exceptions to the presumption of mutual generation. The application is to quash the order.

Background

[2] Miller Transit and York Region entered into a contract for the provision of bus services to the region. The Amalgamated Transit Union (the "union") made a request to York Region for copies of the contracts between the region and two private companies that operate the region's transit services. During the request stage, the union narrowed the request to eight specific sections of the two contracts, the parts being the same in each contract. York Region notified the two private companies of the request, one of which was Miller Transit.

[3] Miller Transit made submissions to York Region claiming the third party information exemption in s. 10(1) applied to the record sought. The other company, with the exception of a small part of Schedule H, advised the region that it had no concerns about the release of the parts of the contract requested. The region granted the union partial access to the Miller Transit record but denied access to the balance based upon the exemption. The union appealed and the parties participated in mediation. The region revised its earlier decision by granting access to Schedule H for both contracts which resulted in the union receiving the entire contract of the other company. However, a significant amount of the Miller Transit contract was still withheld. Accordingly, the case proceeded to the adjudication phase before the IPC adjudicator.

[4] The record at issue was those parts of the contract entitled Contractor's Responsibilities, Region's Responsibilities, Performance Standards, as well as Schedule A and Schedule G.

[5] York Region and Miller Transit took the position that the records were covered by the third party information exemption in s. 10(1), paras. (a), (b) or (c) of the Act. York Region made submissions to the IPC adjudicator and Miller Transit relied on the submissions made to the region during the notification phase, noting the exemption under s. 10(1) and the two recognized exceptions to the general rule that information contained in a contract does not meet the requirement of having been "supplied" under s. 10(1): the "inferred disclosure" and "immutability" exceptions. The union provided representations in response.

The Relevant Provisions

[6] Section 1 of MFIPPA sets out the purposes of the legislation:

1. The purposes of this Act are,

(a) to provide a right of access to information under the control of institutions in accordance with the principles that,

(i) information should be available to the public,

(ii) necessary exemptions from the right of access should be limited and specific, and

(iii) decisions on the disclosure of information should be reviewed independently of the institution controlling the information; and

(b) to protect the privacy of individuals with respect to personal information about themselves held by institutions and to provide individuals with a right of access to that information.

Section 4(1) provides as follows:

4(1) Every person has a right of access to a record or a part of a record in the custody or under the control of an institution unless,

(a) the record or the part of the record falls within one of the exemptions under sections 6 to 15; or

(b) the head is of the opinion on reasonable grounds that the request for access is frivolous or vexatious.

Section 10(1) provides as follows:

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, 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's Order

[7] The IPC adjudicator noted that the third party information exemption in s. 10(1) is designed to protect the confidential "informational assets" of businesses or other organizations that provide information to government institutions: Boeing Co. v. Ontario (Ministry of Economic Development and Trade), [2005] O.J. No. 2851, 200 O.A.C. 134, 2005 24249 (Div. Ct.), leave to appeal dismissed. Although one of the central purposes of the Act is to shed light on the operations of government, s. 10(1) serves to limit disclosure of confidential information of third parties that could be exploited by a competitor in the marketplace.

[8] The adjudicator then outlined the three-part test for applying the exemption, each part of which must be satisfied in order for it to be met [at para. 12]:

1. The record must reveal information that is a trade secret or scientific, technical, commercial or financial 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 paragraph (a), (b) and/or (c) of section 10(1) will occur.

[9] This test was approved by the Ontario Court of Appeal in Ontario (Workers' Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 1998 7154 (ON CA), 41 O.R. (3d) 464, [1998] O.J. No. 3485 (C.A.), at para. 22, where the court dealt with the identical exemption in s. 17(1) of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 ("FIPPA"), which applies to provincial bodies. There, the court said that "[f]ailure to satisfy the requirements of any part of this test will render the s. 17(1) claim for exemption invalid".

[10] The IPC adjudicator found that the contents of the bus service agreement, including Schedules A and G, met the first part of the test because it contains "financial commercial and technical information" for the purposes of s. 10(1). This finding is not challenged before us.

[11] On the second part of the test dealing with whether the information was "supplied" to the institution in confidence, the IPC adjudicator found that the information was not "supplied" by Miller Transit to York Region. Rather, it was "mutually generated" information created through the process of negotiation. He noted that the contents of a contract involving a government institution and a third party will not normally qualify as having been "supplied" for the purpose of s. 10(1), even where the contract is preceded by little or no negotiation or where the final agreement reflects information that originated from a single party. Then he outlined two exceptions to this interpretive approach: the "inferred disclosure" and "immutability" exceptions, which he explained as follows [at para. 19]:

The "inferred disclosure" exception applies where disclosure of the information in a contract would permit accurate inferences to be made with respect to underlying non-negotiated confidential information supplied by the affected party to the institution. The "immutability" exception applies to information that is immutable or is not susceptible of change, such as the operating philosophy of a business, or a sample of its products.

[12] The IPC adjudicator followed other IPC decisions in concluding that the information was not supplied for the purposes of s. 10(1). He found that the record is a contract entered into between the region and the affected party for the provision of bus services and the information incorporated into the contract was mutually generated rather than supplied by the affected party. The second part of the three-part test was therefore not satisfied and the exemption from disclosure under s. 10(1) did not apply. Accordingly, he ordered the record disclosed.

Positions of the Parties

[13] Miller Transit takes the position that the standard of review applicable to the IPC adjudicator's decision is reasonableness. However, to the extent that the IPC adjudicator failed to inquire into or consider relevant facts or automatically applied a rule without examining the relevant facts, it argues the adjudicator acted without jurisdiction and no deference is owed. Miller Transit argues that disclosure of the disputed information which contains technical, commercial and financial information within the meaning of s. 10(1) falls within the "inferred disclosure" and "immutability" exceptions to the general rule that information contained in a contract is not "supplied" for the purpose of the section. Counsel submits that the IPC adjudicator failed to consider the submissions made to him regarding the application of the exceptions.

[14] Miller Transit submits that all the information in the record, except Schedules A and G, was covered by the "immutability" exception because the information in the contract was based upon the company's detailed knowledge and expertise in the area and reflects the company's operating philosophy, methods and principles developed over 25 years of operating bus transit services. Further, the training manual provided in December 2006, includes information that is unique and would be of interest to its competitors. Counsel submits that the parties negotiated the contract on a confidential basis with an understanding that the information would not be disclosed. Miller Transit argues that the adjudicator did not even consider the inferred disclosure and immutability exceptions and gave no reasons as to why they did not apply.

[15] York Region takes the position that most of the information in the agreement was directly supplied to it by Miller Transit as a result of a request for proposal process. Prior to dealing with Miller Transit, the region had no experience in owning and operating a transit system and Miller Transit had 25 years of experience in the field. In submissions to the IPC adjudicator, the region relied on several IPC decisions in which submissions had been made in response to a request for proposal ("RFP") and were found to have been "supplied in confidence". It says that Miller Transit created a manual describing its operations and training schemes and some of that information found its way into the agreement. It further argues that the unique operating and training standards described in the record are subject to the "immutability" exception as they represent "the philosophy of a business". It submits that the IPC adjudicator's decision was unreasonable as, in addition to failing to consider these exceptions, he failed to consider the "reasonable expectation of harm" test where disclosure of competitive business model information would result in loss of competitive advantage.

[16] York Region also points to the issue of legislative intent and submits that it was not the intent of the legislature to curtail interaction between government and suppliers and create a situation where a supplier may not be fully open with a government institution for fear that the informational assets of their business will be disclosed to competitors and the public at large. This may deter leading private companies from conducting business with government.

[17] Relying on Merck Frosst Canada Ltd. v. Canada (Health), [2012] 1 S.C.R. 23, [2012] S.C.J. No. 3, 2012 SCC 3, the region argues that disclosure of government held trade secrets and other confidential commercial information of third parties may be valuable to competitors, and that disclosing such information may cause harm to the third party who provided the information to government. It submits that the IPC adjudicator's decision failed to take into account the intention of the legislature and the policy rationale behind limiting disclosure of confidential "informational assets" and, therefore, is unreasonable.

[18] Counsel for the IPC submits that the standard of review for the IPC's interpretation and application of the third party information exemption is reasonableness. He takes the position that Miller Transit is attempting to shift the onus under s. 10(1) from itself to the IPC adjudicator when it is clear the party seeking the exemption must show that it applies. Counsel also submits that the IPC adjudicator applied the correct three-part test for determining whether the exemption applied. He then reasonably conducted his analysis using the principle that the record was "negotiated" as opposed to "supplied" because the issue was disclosure of information in a contract; this was in line with case law and past IPC decisions. The IPC argues that the adjudicator was alive to the exceptions and reasonably concluded they did not apply. An administrative body does not have to comment on every issue raised by a party in its reasons. Reasons do not have to be perfect or comprehensive: see Newfoundland & Labrador Nurses' Union v. Newfoundland & Labrador (Treasury Board), [2011] 3 S.C.R. 708, [2011] S.C.J. No. 62, 2011 SCC 62, at para. 18. The IPC argues the adjudicator's conclusion fell within the range of possible and acceptable outcomes which are defensible on the facts and the law. There is no basis for the court to set any part of it aside.

[19] The IPC further argues that Miller Transit has raised new issues on this judicial review application which were not raised before the commissioner. In any event, it argues that the new arguments do not alter the reasonableness of the IPC adjudicator's determination.

[20] The union takes the position that the standard of review is reasonableness and that the issues are not jurisdictional in nature. It relies on past IPC orders, in particular Order PO-2435, which dealt with information contained in a response to an RFP which applied the general rule that contractual information will be presumed to be mutually generated, even in the context of a response to an RFP. The union submits that Miller Transit and York Region failed to provide evidence beyond "bald assertions" to show the information was, in fact"supplied in confidence". This did not meet their burden. It argues that the IPC adjudicator cannot be faulted for failing to conduct an inquiry into facts never placed before him. Finally, it submits that public access to contracts entered into by government is desirable and the decision is in keeping with the legislative intent of transparency and accountability where government funds are expended.

Standard of Review

[21] The standard of review for an IPC adjudicator's interpretation and application of the exemption set out in s. 10(1) has been held to be reasonableness: see Ontario (Workers' Compensation Board), at paras. 16-18; Canadian Medical Protective Assn. v. John Doe, 2008 45005 (ON SCDC), [2008] O.J. No. 3475, 88 Admin. L.R. (4th) 68 (Div. Ct.), at para. 39. The reasonableness standard was outlined in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, at para. 47:

A court conducting a review for reasonableness inquires 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.

[22] In Mills v. Ontario (Workplace Safety and Insurance Appeals Tribunal), [2008] O.J. No. 2150, 2008 ONCA 436, 237 O.A.C. 71, at para. 18, the Ontario Court of Appeal held that courts should not assess degrees of deference within the reasonableness standard:

I understand the majority in Dunsmuir to be referring now to only two degrees of deference, correctness, where no deference is accorded, and reasonableness, where deference is accorded. It is not necessary or appropriate to then assess the degree of deference within the reasonableness standard.

[23] The decision maker is entitled to deference in findings of fact and weighing of evidence. It is for the party seeking review of the decision to show positively that the decision is unreasonable: see 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.

[24] Following on the decision in Dunsmuir, the Supreme Court held in Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Assn., [2011] 3 S.C.R. 654, [2011] S.C.J. No. 61, 2011 SCC 61 that issues will rarely be characterized as jurisdictional, at para. 39:

True questions of jurisdiction are narrow and will be exceptional. When considering a decision of an administrative tribunal interpreting or applying its home statute, it should be presumed that the appropriate standard of review is reasonableness. As long as the true question of jurisdiction category remains, the party seeking to invoke it must be required to demonstrate why the court should not review a tribunal's interpretation of its home statute on the deferential standard of reasonableness.

[25] In Volochay v. College of Massage Therapists of Ontario (2012), 111 O.R. (3d) 561, [2012] O.J. No. 3871, 2012 ONCA 541, the Court of Appeal commented on the nature of a "true question of jurisdiction" and noted that the Supreme Court has narrowed the concept's scope such that "a true question of jurisdiction now refers to whether the tribunal had authority to make the inquiry in the first place".

Decision

[26] This application for judicial review concerns the interpretation of the third party exemption contained in s. 10(1) of the Act. In order for the exemption to apply, the applicant has the onus of providing evidence to satisfy each part of the three-part test set out above: see Ontario (Workers' Compensation Board), at para. 22. The IPC adjudicator considered the test and determined that, while the first branch was made out, the second was not. The information ordered disclosed included information which the IPC concluded was generated through the negotiation process as part of the contract entered into between the parties and thus could not be said to have been "supplied" within the meaning of s. 10(1) of the Act.

[27] The IPC adjudicator's approach in this case was consistent with the approach taken in other cases interpreting the same provision in FIPPA. Those cases have held 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 under s. 10(1) of the Act. This approach was approved of in Boeing, at paras. 18-19, as follows:

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 . . . .

The Commissioner took the view that the records before him did not contain information which was supplied to the ministry because the information was found in complex contracts which were the subject of agreement by a number of parties . . . . His conclusion that complex and detailed agreements like the ones before him were the result of negotiations was a reasonable one. While the Ministry has suggested that its role was passive with respect to the Asset Purchase Agreement, it was reasonable for the Commissioner to conclude that the agreement was, nevertheless, negotiated and that it reflected all the parties' interests.

[28] Counsel for the applicant argues that the decision in Boeing is no longer good law in light of the decision of the Supreme Court of Canada in Merck. Respectfully, I disagree. In Merck, Cromwell J. spoke of the need for balance between the objective of encouraging disclosure of government information and protecting legitimate third party interests in the application of the Access to Information Act, R.S.C. 1985, c. A-1 ("ATIA"). He wrote as follows, at paras. 1-2 and 23:

Broad rights of access to government information serve important public purposes. They help to ensure accountability and ultimately, it is hoped, to strengthen democracy. "Sunlight", as Louis Brandeis put it so well"is said to be the best of disinfectants" ("What Publicity Can Do", Harper's Weekly, December 20, 1913, 10, at p. 10).

Providing access to government information, however, also engages other public and private interests. Government, for example, collects information from third parties for regulatory purposes, information which may include trade secrets and other confidential commercial matters. Such information may be valuable to competitors and disclosing it may cause financial or other harm to the third party who had to provide it. Routine disclosure of such information might even ultimately discourage research and innovation. Thus, too single-minded a commitment to access to this sort of government information risks ignoring these interests and has the potential to inflict a lot of collateral damage. There must, therefore, be a balance between granting access to information and protecting these other interests in relation to some types of third party information.

Nonetheless, when the information at stake is third party, confidential commercial and related information, the important goal of broad disclosure must be balanced with the legitimate private interests of third parties and the public interest in promoting innovation and development[.]

[29] ATIA also contains a third party information exemption that requires the information purportedly covered by the exemption to have been "supplied" to the government. Cromwell J. summarized the analytical principles that bear on this requirement, at para. 158:

To summarize, whether confidential information has been "supplied to a government institution by a third party" is a question of fact. The content rather than the form of the information must be considered: the mere fact that the information appears in a government document does not, on its own, resolve the issue. The exemption must be applied to information that reveals the confidential information supplied by the third party, as well as to that information itself. Judgments or conclusions expressed by officials based on their own observations generally cannot be said to be information supplied by a third party.

[30] In Merck, the appellant pharmaceutical company argued that certain information in Health Canada's possession as a result of the regulatory process for approving a new drug was covered by the third party exemption. The specific information said to have been "supplied" consisted of reviewers' notes prepared by scientists retained by Health Canada to evaluate the drug and correspondence between Merck and Health Canada. The information was not contained within a contract. In Boeing, as well as the IPC decisions cited by the adjudicator, the information purportedly covered by the exemption consisted of information in a contract entered into by a government institution and a third party. The interpretive principle employed by the IPC adjudicator in this case and many past IPC decisions -- that contractual information is presumed to have been negotiated, not supplied -- flows from this key factual distinction.

[31] Merck does not alter the law on this point. Rather, the presumption that contractual information was negotiated and therefore not supplied is consistent with Merck. A party asserting the exemption applies to contractual information must show, as a matter of fact on a balance of probabilities, that the "inferred disclosure" or "immutability" exception applies.

[32] Miller Transit further submits that the Supreme Court's caution to consider the "content rather than the form" of the information renders the presumption invalid. Again, it is significant that this caution was made in the context of a different factual scenario: Merck was arguing that the reviewers' notes and correspondence were supplied simply because they were in the government's possession. Contractual information was not in issue. To the extent that the caution applies, I read it as having the opposite effect to that which is asserted by Miller Transit. The third party information exemption will only apply if it can be shown, on a balance of probabilities, how the information in the contract meets the exceptions based on its content, not merely the fact that it originated with the third party. In this case, neither Miller Transit nor York Region highlighted specific information supplied to the region that would permit the drawing of an accurate inference with respect to information supplied, what that inference would be, or what information in the contract was not susceptible to change in the negotiation process and why.

[33] The inferred disclosure exception arises where information actually supplied does not appear on the face of a contract but may be inferred from its disclosure. The onus is on the party to show "convincing evidence that disclosure of the information . . . would permit an accurate inference to be made of underlying non-negotiated confidential information supplied by the affected party . . .": see Order MO-1706, Peel District School Board, [2003] O.I.P.C. No. 238, at paras. 52-53.

[34] The immutability exception arises in relation to information actually supplied by a third party which appears within a contract but which is not susceptible to change in the give and take of the negotiation process such as financial statements, underlying fixed costs and product samples or designs: see Canadian Pacific Railway v. British Columbia (Information and Privacy Commissioner), [2002] B.C.J. No. 848, 2002 BCSC 603, at paras. 73-75, 77.

[35] Miller Transit and York Region argue that the IPC adjudicator failed to conduct the factual inquiry required by the legislation in respect of these exceptions. In reviewing the decision, I find that the applicant failed to provide sufficient evidence to establish either of the exceptions to the general rule. As noted above, Miller Transit and York Region did not detail specific information supplied to the region that would permit the drawing of an accurate inference with respect to information supplied, what that inference would be, or what information in the contract was not susceptible to change in the negotiation process and why. The sections of the contract which Miller Transit says contain its "informational assets" were not raised in the submissions to the IPC adjudicator; moreover, this information is very similar to portions of the contract between the region and the other private bus services company, which information had already been disclosed in full to the requester. It was for Miller Transit and/or York Region to provide the evidence to bring the disputed contents within the two exceptions to the general presumption of mutual generation.

[36] In his reasons, the IPC adjudicator made specific reference to the one document that Miller Transit and the region highlighted as having been supplied in confidence and as containing information that was unique to it and of interest to Miller Transit's competitors, namely, the training manual. However, the IPC adjudicator appropriately found that no one was seeking disclosure of the training manual and, therefore, that record was not at issue in the appeal before him.

[37] Accordingly, the IPC adjudicator's conclusion that the contract was the result of negotiations and not information supplied by the applicant was a reasonable one. He applied the appropriate tests, consistent with past decisions, to the record before him. The order itself is not inherently inconsistent and the decision is consistent with the Act and other jurisprudence: see Boeing, at para. 18; Canadian Medical Protective Assn., at paras. 46, 56; Grant Forest Products Inc. v. Caddigan, [2008] O.J. No. 2243, 2008 27474 (Div. Ct.), at para. 8; and Kitchener (City) v. Ontario (Information and Privacy Commissioner), [2012] O.J. No. 2953, 2012 ONSC 3496 (Div. Ct.), at para. 10. The decision on the third party exemption was not outside the "range of possible acceptable outcomes which are defensible in respect of the facts and law": see Dunsmuir, at para. 47.

[38] Counsel for Miller Transit argues that the IPC's decision fails to set out the reasons for his decision on the application of the exceptions. He relies on the decision of Wall v. Ontario (Independent Police Review Office Director), [2013] O.J. No. 2624, 2013 ONSC 3312 (Div. Ct.), where the court held that there was a complete absence of reasons from the OIPRD on why it refused to deal with Wall's complaint about police misconduct and refer it to the Toronto Police Services Board. In that case, the decision under review was a screening decision and no reasons were given although the legislation requires that reasons be provided for not dealing with a complaint. This case may be distinguished on its facts and on the conclusions reached. Whereas the court in Wall was of the view that they could not say why the director made the decision that he did, and whether the decision fell within a range of acceptable outcomes, in the decision of the IPC adjudicator it is clear that he was not satisfied that the applicant had demonstrated why either exception to the general rule about disclosure of contractual information was established and ordered disclosure. Counsel for the IPC concedes that the reasons could have been more comprehensive. However, he argues that the reasons have to be read in the context of the record and that, when this is done, the reasons demonstrate that the IPC adjudicator was alive to the issues.

[39] While the reasons in the order may not be perfect, so long as they adequately explain the bases of the decision, they are sufficient to permit review: see Newfoundland Nurses, at para. 18, citing Canada Post Corp. v. Public Service Alliance of Canada, [2010] F.C.J. No. 272, 2010 FCA 56, [2011] 2 F.C.R. 221, upheld [2011] 3 S.C.R. 572, [2011] S.C.J. No. 57, 2011 SCC 57. Justice Abella also commented in Newfoundland Nurses that in assessing whether a decision is reasonable in light of the outcome and the reasons, the court is not to substitute its own reasons but"if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome": see para. 15. She wrote that the decision maker does not need to include all the arguments, statutory provisions, jurisprudence and other details that the reviewing judge would have preferred, nor make an explicit finding on each constituent element. This same sentiment was expressed by the Supreme Court in Construction Labour Relations v. Driver Iron Inc., [2012] 3 S.C.R. 405, [2012] S.C.J. No. 65, 2012 SCC 65, at para. 3:

The Board did not have to explicitly address all possible shades of meaning of these provisions. This Court has strongly emphasized that administrative tribunals do not have to consider and comment upon every issue raised by the parties in their reasons. For reviewing courts, the issue remains whether the decision, viewed as a whole in the context of the record, is reasonable (Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708).

[40] Applying these principles, the reasons of the IPC adjudicator when read in the context of the record are reasonable. I adopt the same words used by Abella J. when she wrote, at para. 26 of Newfoundland Nurses: "In this case, the reasons showed that the arbitrator was alive to the question at issue and came to a result well within the range of reasonable outcomes."

[41] It is true that the wording of the IPC adjudicator's reasons is such that they appear conclusory on the question of whether the information falls within the immutability and inferred information exceptions. The conclusory nature of the reasons can be a basis for setting a decision aside and remitting the matter back for a rehearing. However, reasons do not have to be perfect, provided there is sufficient analysis, express or implicit in the decision, which permits judicial review. In this case, I am satisfied that the reasons are sufficient for three reasons: (i) the IPC adjudicator sets out in detail the two exceptions and expressly puts his mind to them; (ii) the IPC adjudicator expressly dealt with the one record that the parties specifically referenced in their submissions to him (the training manual); and (iii) in substance there is no credible argument that the requested information could fall within either exception.

[42] In particular, the requested information contains protocols for training and maintenance (as examples). These are obviously "susceptible to change". Indeed, they are said to be the product of many years' experience, from which it can be inferred that they have, in fact, changed over time. Either Miller Transit or the region could seek changes to these terms and, indeed, may do so in future iterations of the contract. In no way can this information be considered "immutable" in the way of financial statements or product samples.

[43] Similarly, the "inferred disclosure" exception cannot apply. It applies where contractual information gives rise to an inference, not that the very same information may be found in materials provided by a third party, but that other, confidential, information belonging to the third party may be gleaned by reference to contractual information. That is not the situation here: Miller Transit argues that contractual terms and information mirror documents provided by it to York Region.

[44] The IPC adjudicator's decision was also consistent with the intent of the legislation which recognizes that public access to information contained in government contracts is essential to government accountability for expenditures of public funds: see Vaughan (City) v. Ontario (Information and Privacy Commissioner) (2011), 109 O.R. (3d) 149, [2011] O.J. No. 6147, 2011 ONSC 7082 (Div. Ct.), at para. 49.

[45] Access to information legislation must be interpreted within the context of its purpose which is to facilitate democracy by ensuring that citizens have the information required to participate meaningfully in the democratic process and to hold politicians and bureaucrats accountable to the citizenry: see Ontario (Ministry of Northern Development and Mines) v. Ontario (Assistant Information and Privacy Commissioner), 2004 15009 (ON SCDC), [2004] O.J. No. 163, 181 O.A.C. 251 (C.A.), at para. 66, citing Dagg v. Canada (Minister of Finance), 1997 358 (SCC), [1997] 2 S.C.R. 403, [1997] S.C.J. No. 63, at paras. 61-63. According to s. 1 of the Act, statutory exemptions such as the third party exemption claimed in this case exist to protect privacy interests in "limited and specific" situations. Our courts have held that those exceptions from the general purpose of making government-held information available to the public are to be construed narrowly.

[46] Miller Transit and York Region raise additional issues in their facta filed on this judicial review application that were not before the IPC adjudicator. One argument relates to the "harm" portion of the test under s. 10(1) and asks this court to assess the harm caused by disclosure of third party information. The other argument raises the prospect of a new exception of unspecified form that would operate to bring the record under the third party information exemption. The Supreme Court has said that, generally, a court has discretion not to consider an issue raised for the first time on judicial review where it would be inappropriate to do so, and that "[t]his is particularly true where the issue raised for the first time on judicial review relates to the tribunal's specialized functions or expertise. When it does, the Court should be especially careful not to overlook the loss of the benefit of the tribunal's view inherent in allowing the issue to be raised": see Alberta Teachers' Assn., at para. 25. The question of harm is only relevant to the third part of the test which the IPC adjudicator never considered because he found the second part of the test was not met. The argument for a new, unspecified exception is entirely speculative and without authority.

[47] The arguments being advanced now that were not before the IPC adjudicator do not change the conclusion reached that the order was reasonable as it falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and law.

[48] For these reasons, the application for judicial review is dismissed. The parties have agreed that there shall be no order as to costs.

Application dismissed.