CITATION: Canadian Home Healthcare Inc. v. Halton Healthcare Services and Information and Privacy Commissioner of Ontario, 2024 ONSC 5966

DIVISIONAL COURT FILE NO.: 617/23

DATE: 20241104

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

McWatt A.C.J.S.C., Myers and Shore JJ.

BETWEEN:

Canadian Home Healthcare Inc.

Applicant

– and –

Halton Healthcare Services and Information and Privacy Commissioner of Ontario

Respondents

Trevor Winter, for the Applicant

Respondent Halton Healthcare Services - not represented

Brendan Gray, for the Respondent Information and Privacy Commissioner of Ontario

HEARD: October 7, 2024 in person

Mcwatt a.c.j.s.c.

[1] The Applicant, Canadian Home Healthcare Inc. (“Canadian Home” or the “Applicant”), seeks judicial review of the Order and the related reconsideration Order rendered by an arbitrator at the Information and Privacy Commissioner of Ontario (the “IPC”). The Orders, collectively, require disclosure of a portion of a Joint Venture Agreement (the “JVA”) and accounting records (the “Payment Records”) between the Applicant and the Respondent Halton Health Services (“HHS”). Canadian Home requests that both Orders be stayed. The IPC responds to the application brought by Canadian Home and requests that it be dismissed on the bases that the IPC’s process was fair; the interpretation and application of s. 17(1) of The Freedom of Information and Privacy Act, R.S.O. 1990, c. F.31 (“FIPPA”) was reasonable; and the Applicant could but did not, raise s. 17(2) of FIPPA at the hearings and this issue is not now appropriate for this Court to take judicial notice of. HHS did not attend the review.

BACKGROUND

[2] The Applicant has a joint venture with HHS, called “C-Air”. C-Air provides home oxygen services.

[3] In July 2020, HHS received a disclosure request under the FIPPA seeking information related to its partnership with the Applicant, including its JVA and Payment Records. HHS notified the Applicant of its intention to grant the request. In response, the Applicant made representations to HHS asking it to deny the request pursuant to the mandatory third-party information exemption pursuant to s. 17(1) of FIPPA. HHS agreed and refused access to the disclosure request. The requestor then appealed that decision to the IPC. This appeal was resolved through mediation, where HHS revised its decision and granted the requestor full access to the records.

[4] The Applicant then appealed HHS’ revised decision to the IPC and proceeded to adjudication. In its submissions before the Tribunal, Canadian Home maintained that both the JVA and the Payment Record detail its novel fee-split formulation for its partnership with HHS. According to the Applicant, these formulations are valuable and not generally known within its industry, and therefore qualify as trade secrets pursuant to s. 17(1) of FIPPA.

[5] In the original Order, the adjudicator refused the Applicant’s appeal and ordered that both documents be disclosed to the requestor, explaining that the purpose of s. 17(1) is to protect certain confidential information that businesses or other organizations provide to government institutions. For s. 17(1) to apply, the party arguing against disclosure had to satisfy each of the following criteria:

1. The record must reveal information that is a trade secret or scientific, technical commercial, financial or labour relations information;

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), (c), and/or (d) of s.17(1) will occur.

[6] With respect to the first criteria of the test, the adjudicator determined that the JVA qualified as commercial information, and that the Payment Records qualified as financial information. Both records therefore satisfied this requirement.

[7] With respect to the second criteria, the adjudicator found that while the Payment Record was “supplied in confidence” to HHS, the JVA was not. She reasoned that, like most contracts, the JVA was mutually negotiated and generated by both parties, and not “supplied” by the Applicant. This, she found, followed from the general rule that the contents of a contract between a government institution and a third party (i.e., the Applicant) will not normally qualify as having been “supplied” for the purposes of s. 17(1). While this rule is subject to certain exceptions, such as the inferred disclosure and immutability exceptions, neither party raised these exceptions in their submissions, and it was not evident on the face of the records that either exception applied. The adjudicator therefore ordered disclosure of the JVA to the requestor on this ground.

[8] With respect to the Payment Record and the third criteria, the adjudicator rejected the Applicant’s and HHS’ submissions that disclosure of the Payment Record could reasonably be expected to lead to harms outlined in s.17(1)(a) or (c). She found that both the Applicant and HHS failed to provide any concrete evidence about the alleged risk of harm. While they insisted that disclosure of the Payment Record could be exploited by competitors, they failed to explain how this might occur.

[9] Since neither the JVA nor the Payment Record satisfied all three components of the s. 17(1) test, the adjudicator ordered that both be disclosed to the requestor.

[10] At the Request for Reconsideration, the Applicant sought review of the Original Order pursuant to s. 18.01 of the IPC’s Code of Procedure. They argued that the adjudicator’s decision contained fundamental defects as well as accidental errors.

[11] The adjudicator dismissed two arguments relating to alleged accidental errors. First, that she erred when finding that it was not evident on the face of the records that the “inferred disclosure” exception was applicable. Second, she dismissed the Applicant’s argument that the IPC erred in finding that the parties did not make representations on the potential application of this exception. In fact, HHS had referred to the inferred disclosure exception in its submissions on the first hearing. The adjudicator found, however, that HHS’ reference to the inferred disclosure exception were mistaken as they mischaracterized the exception without referencing the proper authorities.

[12] With respect to the allegations of fundamental defects in the original Order, the adjudicator rejected an argument by the Applicant that the swapping out of adjudicators during the appeal process might affect the parties’ rights. She noted that it was open for the Tribunal to assign a new adjudicator and to invite further submissions throughout the appeal process.

[13] The adjudicator also rejected a claim that the JVA had not been considered as two separate documents, which could have affected the outcome of the decision. She found that the Applicant did not explain how separating the JVA into multiple documents could have affected the outcome.

[14] In another ground, the Applicant complained that the IPC’s Code of Procedure prevented it from making fulsome arguments for fear that sensitive information would be disclosed without the parties’ consent. The adjudicator concluded that this did not constitute a “fundamental defect”, and that the parties were invited to identify the representations which they believed should remain confidential and redacted.

[15] Finally, the Applicant maintained that its having not been made aware of the requestor’s identity was a breach of procedural fairness. The applicant took the position that this prevented the Applicant from determining the possible risk of disclosure of the information. The adjudicator found that this issue was not generally relevant in the appeal process and did not constitute a breach of procedural fairness since it did not affect the parties’ ability to meet the case.

[16] The Applicant’s reconsideration request was denied, and HHS was required to comply with the provisions in the Original Order.

STANDARD OF REVIEW

[17] The parties agree that the standard of review is reasonableness (Canada (Minister of citizenship and Immigration) v. Vavilov, 2019 SCC 65). The parties also agree that there is no standard of review for questions of procedural fairness. Rather, this Court must determine whether the requisite level of procedural fairness was granted by applying the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.

ANALYSIS

i. The Procedure was Fair

[18] The Applicant argues that the IPC breached the duty of procedural fairness by:

• Not informing its counsel of all other possible arguments it could make;

• Providing it with an unclear description of the test to be applied; and,

• Not explaining that other sections of FIPPA (beyond s. 17(1)) could have

been applicable.

[19] There is no legal authority to support the first claim. If generally accepted, such a “duty” would impose an unreasonable obligation on the IPC. Even where the Baker factors impose heightened procedural fairness requirements, courts have refused to impose similar obligations on administrative decision-makers (Brown v. Information and Privacy Commissioner of Ontario, 2021 ONSC 8081 (Div. Ct) at paras. 26-29; Ibabu v Canada (Citizenship and Immigration), 2015 FC 1068 at para. 36).

[20] In addition, the Applicant was represented by counsel throughout. The IPC is entitled to assume that lawyers know the substantive law and procedure for the areas of law in which the lawyer practises. The IPC cannot be expected to second guess a lawyer’s decisions on behalf of a client.

[21] Regarding the second complaint, the Respondent provided substantial guidance to the Applicant on the interpretation of relevant provisions in FIPPA in its “Notice of Inquiry”, dated December 24, 2021, Public Record, Vol. 1, Tab 12B, pp.126 to 136. This document included the definition of information that is “supplied”, and whether its disclosure could reasonably be expected to cause harms. The IPC also provided its “Inquiry Checklist”, Public Record, Vol. 1 Tab 12D, p. 142 to assist the Applicant in making its submissions.

[22] The Applicant does not identify how, specifically, the information the IPC provided to the Applicant’s counsel is unclear.

[23] With respect to its last complaint, the Respondent maintains that any suggestion that the IPC should have advised the Applicant about other possible exemptions to the right of access (beyond s. 17(1)), results from the Applicant’s misapprehension of its role in the statutory appeal process administered by the IPC.

[24] The Applicant is not an institution under FIPPA. The institution subject to FIPPA is HHS. The Applicant became involved in the IPC’s appeal process specifically because the information responsive to the access request “might contain information referred to in subsection 17(1)”. The Applicant was entitled to commence an appeal with the IPC specifically because it was notified by HHS that information referred to in s. 17(1) might be in issue and HHS decided to disclose this information. The submission that it should have been informed about other sections in FIPPA overlooks the fact that s. 17(1) is the basis for the Applicant’s participation in the IPC’s appeal process. In any event, the IPC disputes that any additional exemptions in FIPPA are relevant.

[25] In that regard, IPC specifically asked the Applicant to raise any additional factors beyond those raised in the Notice of Inquiry. The checklist sent by the IPC to the Applicant further asked whether there are “other issues not set out in the Notice of Inquiry you wish to address?” In emails between them, counsel for the Applicant then asked the IPC whether he was “limited to the grounds of appeal that are listed in the Notice of Inquiry?” The IPC responded that he was invited to “raise any additional factors that you believe to be relevant”. The Applicant’s counsel later suggested he was “very likely” to raise new exemptions in FIPPA beyond s. 17(1), and the IPC provided him with information to assist him should he wish to raise those exemptions.

[26] Despite this, the Applicant did not raise any additional exemptions in its representations to the IPC. Nor did the Applicant raise the procedural fairness objections, that it has raised in this application for judicial review, in its request for reconsideration before the adjudicator.

[27] Finally, the Applicant alleges that it was provided insufficient time to provide its response to the IPC. However, the Applicant was granted all the time extensions it requested and in the amounts of time it requested. The Applicant was granted at least three extensions of time, for an additional almost four weeks (in addition to the original four weeks originally provided by the IPC).

[28] The process was procedurally fair.

ii. The Adjudicator’s Interpretation and Application of FIPPA s. 17(1) Was Reasonable

[29] The adjudicator’s finding that the second requirement of the s. 17(1) test, which requires that the information must have been “supplied in confidence”, did not apply to the JVA, was sound. Evidence provided by HHS’ demonstrating that the JVA was the result of mutual negotiations between HHS and the Applicant. The Applicant was provided an opportunity to respond to this evidence but decided not to do so.

[30] The IPC cited several Divisional Court decisions confirming that information contained in a contract is not generally considered to be “supplied” for the purposes of s. 17(1). I repeat them here: Boeing Co. v. Ontario (Ministry of Economic Development and Trade at para 18; Grant Forest Products v. Caddigan, at paras. 6-8; HKSC Developments LP v Infrastructure Ontario, 2013 ONSC 6776 at para 31; Miller Transit Limited v. Information and Privacy Commissioner of Ontario et. al., 2013 ONSC 7139 at para. 37; Aecon Construction Group Inc. v. Information and Privacy Commissioner of Ontario, 2015 ONSC 1392, at para. 13; Toronto-Dominion Bank v. Ryerson University, 2017 ONSC 1507, at para. 33; K-Bro Linen Systems Inc. v. Ontario (Information and Privacy Commissioner, 2022 ONSC 3572, at para. 24.

[31] Accepting the Applicant’s interpretation of this provision would effectively result in overturning decades of jurisprudence governing s. 17(1)’s application to government contracts. The Applicant makes substantially the same arguments that were rejected by the Divisional Court in decisions such as Toronto-Dominion Bank and K-Bro (K-Bro Linen Systems Inc. v. Ontario (Information and Privacy Commissioner, 2022 ONSC 3572, at para. 24; Toronto-Dominion Bank v. Ryerson University, 2017 ONSC 1507, at para. 33). And, adopting the Applicant’s interpretation would also severely limit public transparency into government contracts with third parties, which is contrary to the legislative intent of FIPPA.

iii. It is Not Appropriate for this Court to Take Judicial Notice of FIPPA s. 17(2) Regarding the Payment Records

[32] The Applicant maintains that the Adjudicator failed to consider whether the Payment Record may have been subject to the exclusion set out in s. 17(2) of FIPPA. Section 17(2) creates an exemption to the right of access for records that would reveal information obtained on a tax return or gathered for the purpose of determining tax liability.

[33] The Applicant argues that since the Payment Record consists of a “trial balance”, it is possible that the exemption in s. 17(2) could have applied, but the adjudicator did not invite any submissions on this point. The Applicant argues that this Court is free to take judicial notice of this matter and should exclude the payment record from disclosure to the requestor.

[34] Section 17(2) was not raised by either party at the Tribunal. The IPC was under no obligation to actively invite submissions on this point. The Applicant was permitted to raise additional exemptions such as the potential application of s. 17(2) but chose not to. And, even if it had, this claim would probably have been unsuccessful, since nothing in either the Applicant’s or HHS’ evidence indicated that the Payment Record was gathered for “tax purposes”.

[35] In any event, even if this Court were to determine that the IPC was unreasonable in not raising section 17(2), the more appropriate remedy would be to remit the matter back to the IPC rather than taking judicial notice of it.

[36] The Application is dismissed.

COSTS

[37] Neither party requests costs for this application. Therefore, we order no costs.

McWatt A.C.J.S.C.

Myers J.

Shore J.

Released: November 04, 2024