Information and Privacy Commissioner, Ontario, Canada

Commissaire à l’information et à la protection de la vie privée, Ontario, Canada

ORDER MO-3132

Appeal MA13-117

Regional Municipality of Peel

December 2, 2014

Summary: The region received a request for records relating to the appellant and its contracted water main project. The region, after giving notice under section 21, granted access to all the responsive records. The appellant appealed the region’s decision to grant access citing the mandatory third party information exemption in section 10(1) of the Act. The original requester submitted that the public interest override in section 16 applies to the withheld information. The adjudicator partially upholds the region’s decision and finds that section 16 does not apply to the withheld information.

Statutes Considered: Municipal Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. M.56 , as amended, sections 10(1) and 16.

Orders and Investigation Reports Considered: MO-2115, MO-2260, MO-2715 and MO-2787-I.

OVERVIEW:

[1] The Regional Municipality of Peel (the region) received a request under the Municipal Freedom of Information and Protection of Privacy Act  (the Act ) for access to the following information:

I would like to request a copy of any and all communication and materials both print and electronic submitted by [named third party] or [named company] relating to the Region of Peel Project #10-1205 or Hanalan Feedermain Contract 1 South contract and any response or correspondence from the Region of Peel to [above named third party] or [above named company] regarding this project. Specifically relating to pipe.

[2] After notifying the third parties under section 21 of the Act and considering the submitted representations, the region issued a decision advising that full access would be granted to the responsive records.

[3] One of the third parties, now the appellant, appealed the region’s decision.

[4] During mediation, the requester took the position that there is a public interest in the disclosure of the records at issue raising the possible application of the public interest override in section 16 to the appeal. Also during mediation, the requester, a competitor, consented to the disclosure of his identity to the appellant.

[5] In my inquiry into this appeal, I sought representations from the appellant, the region, the requester, and another affected party. I received representations from the appellant only.

[6] In this order, I uphold the region’s decision, in part, and find that section 16 does not apply to the withheld information.

RECORDS:

[7] The records at issue include emails, letters, reports, drawings and photos totalling 2990 pages. I have included an index of records in the appendix to this order.

ISSUES:

1. A. Are the records exempt under the mandatory exemption in section 10(1)?
2. B. Is there a compelling public interest in the disclosure of the records that overrides the purpose of the section 10(1) exemption?

DISCUSSION:

A. Are the records exempt under the mandatory exemption in section 10(1)?

[8] The appellant submits that the records at issue are exempt under section 10(1)  of the Act  which states, in part:

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;

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

[9] Section 10(1) is designed to protect the confidential informational assets of businesses or other organizations that provide information to government institutions.¹ Although one of the central purposes of the Act  is to shed light on the operations of government, section 10(1) serves to limit disclosure of confidential information of third parties that could be exploited by a competitor in the marketplace.²

[10] For section 10(1) to apply, the appellant must satisfy each part of the following three-part test:

1. 1. the record must reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information; and
2. 2. the information must have been supplied to the institution in confidence, either implicitly or explicitly; and
3. 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 section 10(1) will occur.

[11] For the purpose of making submissions, the appellant categorized the records in the following manner:

• • Category 1: Correspondence between CH2M Hill and the Region or Varcon that refers to [the appellant]
• • Category 2: Correspondence between CH2M Hill or Varcon and [the appellant]
• • Category 3: [Appellant’s] design documents and drawings
• • Category 4: [Appellant’s] invoices
• • Category 5: Contractual documents such as change order and stop work orders
• • Category 6: Miscellaneous (e.g. invoices form supplier to [appellant], Quebec certification and inspections.

Part 1: type of information

[12] The appellant submits that the records in each of the six categories contain both commercial and financial information concerning the project, including information relating to:

• • Detailed specifications for [the appellant’s] products, including installation guides, design drawings (Category 3);
• • The pricing of [the appellant’s] products (Category 4);
• • Contractual relations between CH2M Hill, Varcon and [appellant] (Categories 1, 2 and 5); and
• • Various matters not directly related to the project (Category 6).

[13] The appellant submits that the records also contain trade secrets and proprietary information relating to its products, including important specifications which it consistently treats as a trade secret. The appellant submits that this information is not available from sources otherwise accessible by the public and cannot be obtained by observation or independent study by a member of the public acting on his or her own.

[14] The types of information listed in section 10(1) have been discussed in prior orders. I find the following definitions to be relevant in this appeal:

Trade secret means information including but not limited to a formula, pattern, compilation, programme, method, technique, or process or information contained or embodied in a product, device or mechanism which

(i) is, or may be used in a trade or business,

(ii) is not generally known in that trade or business,

(iii) has economic value from not being generally known, and

(iv) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.³

Technical information is information belonging to an organized field of knowledge that would fall under the general categories of applied sciences or mechanical arts. Examples of these fields include architecture, engineering or electronics. While it is difficult to define technical information in a precise fashion, it will usually involve information prepared by a professional in the field and describe the construction, operation or maintenance of a structure, process, equipment or thing.⁴

Commercial information is information that relates solely to the buying, selling or exchange of merchandise or services. This term can apply to both profit-making enterprises and non-profit organizations, and has equal application to both large and small enterprises.⁵ The fact that a record might have monetary value or potential monetary value does not necessarily mean that the record itself contains commercial information.⁶

Financial information refers to information relating to money and its use or distribution and must contain or refer to specific data. Examples of this type of information include cost accounting methods, pricing practices, profit and loss data, overhead and operating costs.⁷

[15] Based on my review of all the records, I find that they contain commercial, financial and technical information within the meaning of section 10(1). I am satisfied that the records relate to the appellant’s sale of both its products and services relating to the Hanlan Feedermain project and that the records also contain engineering information about the project. The records contain the appellant’s invoiced prices to the region for the project. With respect to the commercial information contained in the records, I find that they contain the appellant’s various responses to other affected parties about the completion of the project and the fulfillment of certain contractual terms.

[16] I find that the appellant has not established that the records contain information that would constitute a trade secret for the purposes of section 10(1). The appellant has identified its detailed specifications as information which it treats as trade secret information, but the records and information in its Category 3 records is both extensive and varied. It is not evident to me that all of this information is not generally known in this business or trade and that it has economic value from not being known. The fact that these records and information were being circulated between the various parties to the project does not indicate to me that the appellant attempted to keep this information secret and confidential.

[17] However, as I have found that the records contain commercial, financial and technical information within the meaning of section 10(1), I find the appellant has met Part 1 of the test for section 10(1).

Part 2: supplied in confidence

Supplied

[18] The requirement that the information was supplied to the institution reflects the purpose in section 10(1) of protecting the informational assets of third parties.⁸

[19] Information may qualify as supplied if it was directly supplied to an institution by a third party, or where its disclosure would reveal or permit the drawing of accurate inferences with respect to information supplied by a third party.⁹

[20] The contents of a contract involving an institution and a third party will not normally qualify as having been supplied for the purpose of section 10(1). The provisions of a contract, in general, have been treated as mutually generated, rather than supplied by the third party, even where the contract is preceded by little or no negotiation or where the final agreement reflects information that originated from a single party.¹⁰

[21] There are two exceptions to this general rule which are described as the inferred disclosure and immutability exceptions. 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 third party to the institution.¹¹ The immutability exception applies where the contract contains information supplied by the third party, but the information is not susceptible to negotiation. Examples are financial statements, underlying fixed costs and product samples or designs.¹²

In confidence

[22] In order to satisfy the in confidence component of part two, the parties resisting disclosure must establish that the supplier of the information had a reasonable expectation of confidentiality, implicit or explicit, at the time the information was provided. This expectation must have an objective basis.¹³

[23] In determining whether an expectation of confidentiality is based on reasonable and objective grounds, all the circumstances are considered, including whether the information was

• • communicated to the institution on the basis that it was confidential and that it was to be kept confidential
• • treated consistently by the third party in a manner that indicates a concern for confidentiality
• • not otherwise disclosed or available from sources to which the public has access
• • prepared for a purpose that would not entail disclosure¹⁴.

Appellant’s representations

[24] The appellant submits that the records relate to a commercial relationship between itself, Varcon Construction Corporation and CH2M Hill¹⁵ and it emphasizes that none of these entities are subject to disclosure requirements under the Act  or similar legislation. The appellant submits that it did not directly supply the records to the region and that it is unclear as to how the region obtained many of the records. The appellant submits that it had limited direct contact with the region through the course of the project and corresponded primarily with either Varcon or CH2M Hill. The appellant submits that it reasonably assumed that its communications with these two entities was on a strictly confidential basis.

[25] The appellant states:

Accordingly, [the appellant] was not aware that its commercial and financial information was being provided to the region and that this information would be subject to disclosure requests under the Act . The unauthorized disclosure of [the appellant’s] correspondence with the region by other parties violated [the appellant’s] expectation of confidentiality. To that end, a Legal Notice is provided at the bottom of outgoing emails from the [appellant] that prohibits the dissemination of the contents of emails to unauthorized third parties.

[26] The appellant quotes its confidentiality notice that is on its emails.

Analysis and finding

[27] I must first consider whether the appellant supplied the records to the region for the purposes of section 10(1). The appellant submits that it did not directly supply the records to the region and instead, that either Varcon or CH2M Hill disclosed, without authorization, the records which contains its information to the region.

[28] In Order MO-2260, Adjudicator Colin Bhattacharjee considered an appeal from a request for all plans, contracts, and schedules relating to an ongoing road sewer project in London, Ontario (the city). Adjudicator Bhattacharjee identified the affected third parties as: the engineering firm hired by the city to manage the storm sewer project (the contract administrator); the firm that was contracted to lead the work on the storm sewer project (the contractor); the firm that was subcontracted to build the tunnel for the storm sewer (the tunnel subcontractor). The appellant in Order MO-2260 was the tunnel subcontractor.

[29] The tunnel subcontractor did not provide representations on the supplied in confidence part of the test, so Adjudicator Bhattacharjee found the following:

Based on my review of the records at issue, it appears that the contractor sent correspondence that it received from the appellant to the contract administrator, who then provided these records to the city. The city submits that it was appropriate for the engineering firm acting as the contract administrator to provide the records at issue to the city. It asserts that the contract administrator had a contractual obligation to report back to the city with respect to how the tunnel project was progressing.

In my view, the contract administrator hired to oversee the project was acting as the city’s agent. I accept the city’s submission that the contract administrator had an obligation to report back to the city on the progress of the project, which included providing the city with relevant documentation submitted by the appellant and other parties involved in the construction of the tunnel.

Given that the contract administrator was acting as the city’s agent, I find that any information in the records at issue that was provided to the contract administrator was, procedurally speaking, directly supplied to the city, for the purposes of section 10(1)  of the Act .

[30] I agree with this rationale and apply it here.

[31] In the present appeal, CH2M Hill was the engineering firm hired to be the contract administrator for the project and Varcon Construction Corporation (Varcon) was the general contractor. The appellant was the subcontractor providing the pipes for the project. This is evident from both the records and based on public information about the project. Similarly to the reporting relationship in Order MO-2260, when Varcon received records and information from the appellant, it provided this information to CH2M Hill which in turn provided it to the region. This is also evident from the records.

[32] While I did not receive representations from the region describing its relationship with Varcon, CH2M Hill or the appellant, I conclude that CH2M Hill was contractually required to provide status and update information about the project to the region. Furthermore, it is evident that the appellant was also contractually required to provide information to Varcon for the purposes of the project. Varcon was then required to provide information about the pipe and its installation to CH2M Hill. It is not evident to me how the disclosures of information by CH2M Hill and Varcon to the region were unauthorized given that the appellant does not dispute the fact that they were the pipe subcontractor on this project for the region.

[33] Accordingly, although I am unable to find a similar agency relationship between CH2M Hill and the region without specific representations establishing this, I find, for the purposes of this appeal, that when the appellant supplied information to Varcon and CH2M Hill, it was supplying the information to the region for the purposes of section 10(1)¹⁶.

[34] After reviewing the records, I found that a number of the records meet the supplied component of the part 2 test in that the records would either directly or indirectly disclose information supplied by the appellant to the region. I will consider whether these records also meet the in confidence component in my discussion below. However, I find that the following records do not contain information supplied by the appellant to the region; nor would it be possible to infer the appellant’s information from disclosure of the following:

Documents 1 – 4, 6, 7, 11 (in part), 16 – 22, 23, 25, 27 – 36, 38 – 40, 43, 45, 46, 48, 50, 53, 55, 56, 58, 59, 62 – 65, 67, 72 – 74, 77, 79, 80, 82 – 87, 89, 90 – 93, 96, 99 – 102, 104, 105, 125, 126, 128, 129A, 130, 132, 134, 140, 143 – 146, 149, 154 – 156, 159, 162, 166, 168, 171, 175, 176, 181 – 183, 186 – 193, 195 – 197, 200 – 207, 209, 220 – 224, 234, 235, 237 – 247, 249, 250, 252, 253, 255 – 257, 259, 261, 271, 274, 277.

[35] In addition to the records listed above, there are several others which I find contain information that was supplied by the appellant or whose disclosure would reveal information supplied by the appellant but, also contain information not supplied by the appellant. While I do not list them here, I find that portions of these records were not supplied by the appellant for the purposes of section 10(1) and thus do not meet the part 2 test of section 10(1).

[36] Document 98 consists of the appellant’s invoices for the various submittals. The invoices consist of the submittal number, the total value, HST amount and then total invoice amount. The appellant argues that disclosure of its pricing information would be exploited by its competitors to underbid the appellant in future procurement projects. This office has found in past orders that pricing information contained in contracts do not qualify as having been supplied for the purposes of section 10(1). Instead, this type of information is characterized as being mutually generated and the product of negotiation. In this case, the invoiced pricing is not found in a contract, but in the invoice which relates to a contract.

[37] In Order MO-2787-I, Adjudicator Cathy Hamilton considered whether invoices between an affected party and the City of Dryden (the city) were supplied in confidence for the purpose of section 10(1). The city argued that the invoice was a document created and furnished by a third party over which the city had no input and thus cannot be said to be the product of negotiation. The affected party argued that the invoice was directly supplied by it to the city and that disclosure of the information would permit the accurate inference to be made with respect to the underlying non-negotiated confidential information.

[38] In finding that the invoice did not contain information supplied by the affected party to the city, Adjudicator Hamilton reviewed Orders MO-2115 and MO-2715. In Order MO-2115, Adjudicator Diane Smith considered whether invoices submitted by an affected party to the City of Windsor in relation to the disposal and treatment of the City of Windsor’s sewage sludge was supplied. During her review of the invoices, Adjudicator Smith stated:

Record 2 is comprised of invoices from the affected party to the City with the rate charged per metric tonne of sludge cake and the amount charged severed. The number of metric tonnes of sludge cake has been disclosed. Therefore, by revealing the rate, the amount charged can be calculated and vice versa. Schedule E provides the formula for the calculation of the rate as it lists unit pricing, including adjustment details. I found above that the information in Schedule E has not been supplied for the purposes of section 10(1). For the same reasons, I conclude that the severed items in Record 2, the invoice amounts and rate charged per metric tonne, as calculated by the formula set out in Schedule E, has not been supplied, as well.¹⁷

[39] Adjudicator Hamilton reviewed Order MO-2715, where Assistant Commissioner Brian Beamish considered an appeal from a request for the unit costs, estimated costs and item costs in two schedules of the contract between the city and the affected party and the invoices seeking payment from the affected party to the city. In finding that section 10(1) did not apply, the Assistant Commissioner found that neither the pricing information nor the invoices were supplied to the city by the affected party for the purposes of section 10(1) as they were the products of negotiation between the city and the affected party.

[40] Finally, in finding that the invoices were not supplied by the affected party to the City of Dryden, Adjudicator Hamilton states:

Applying the reasoning taken by Assistant Commissioner Beamish and Adjudicator Smith, I find that the progress claims, invoices and emails are a product of negotiation between the city (and its agent, the consultant) and the affected party. I do not agree with the city that these records were simply supplied by the affected party to the city without any input from the city, especially given the fact that the city is paying the affected party to complete the project in accordance with the terms of a negotiated construction contract. Further, it is evident from some of the email communications that negotiation was ongoing between the city and the affected party in relation to cost issues as they arose. I also do not agree with the affected party that these records would permit accurate inferences to be made with respect to underlying non-negotiated confidential information, such as its construction methodologies.

Consequently, I find that these records were not supplied to the city within the meaning of section 10(1)¹⁸.

[41] Adjudicator Hamilton finds that the invoices would also fail on the in confidence requirement in part two. Adjudicator Hamilton found that the affected party had not provided sufficient evidence to establish that the invoices were provided in confidence. She states, at paragraph 156:

There is no notation on the invoices that indicate that they are to be kept confidential. While the lack of such a notation is not necessarily fatal to a claim of confidentiality, in the circumstances of this appeal, despite the assertions of the affected party, it leads me to the conclusion that the invoices were not submitted to the city on the basis that they confidential and to be kept confidential.

[42] I agree with Adjudicator Hamilton’s analysis and rationale with respect to invoices and apply it here.

[43] Document 98 consists of four invoices. I find that the information on the invoices was not supplied by the appellant to the region and instead was negotiated information. In particular, I find that the price for work completed listed on the invoice is information that would have been negotiated between the region and the appellant and thus does not meet the supplied requirement in section 10(1). Moreover, I find that disclosure of this information would not disclose the non-negotiated information supplied by the appellant to the region. Lastly, I find that the appellant has not established that the invoices were provided to the region in confidence, either explicit or implicit. Similar to the approach taken in Order MO-2787-I, the invoices do not contain a notation about confidentiality; nor does the appellant indicate in their representations that their pricing information was confidential. I find that Document 98 does not meet part 2 of the test for the application of section 10(1).

[44] As section 10(1) only applies to information supplied by a third party to an institution and the above records do not meet the supplied component, I find that these records are not exempt under section 10(1). As no other discretionary exemption has been claimed and no other mandatory exemption applies, these records should be disclosed to the requester.

In confidence finding

[45] I will now consider whether the appellant supplied the information in confidence. The appellant submits that some of the records, specifically emails originating with the appellant, contained an explicit notice prohibiting copying or distributing the information to anyone other than the intended recipient. The appellant further submits that it was unaware that either Varcon or CH2M Hill was providing its commercial and financial information to the region. However, despite the fact that the appellant would have been aware that its information was being shared with the region throughout the project’s lifetime, the appellant does not indicate that it has taken action against or raised any objects with either Varcon or CH2M Hill for disclosure of its information to the region. Nevertheless, I am prepared to find that the appellant had an explicit expectation of confidentiality when it emailed information to Varcon or CH2M Hill.

[46] I further find that the appellant’s technical drawings contained in the records also contain an explicit statement as to the confidential nature of the information. Accordingly, I find that these records were also supplied to the region with a reasonable expectation of confidentiality.

[47] While the remaining records do not contain explicit confidentiality statements, I find that the appellant would have an implicit expectation of confidentiality with respect to the information supplied. Given the nature of the project, I find that the appellant would reasonably expect that its commercial information would be treated in a confidential manner by the region.

[48] With the exception of two records, Documents 248 and 258, I find that the records which the appellant supplied to the region were provided with an explicit or implicit expectation of confidentiality. I find that the appellant has met the second part of the test for the application of section 10(1) for these records and I will proceed to consider whether the appellant has established the required harm in disclosure.

[49] I find that with respect to Documents 248 and 258, the appellant did not have an implicit or explicit expectation of confidentiality. Document 248 is an email chain relating to the appellant’s view of the agreement between itself and the region, which the appellant relayed to an individual employed by CH2M Hill. I find that there was no expectation of confidentiality with respect to the information. Record 258 contains general information regarding the pipe installation which is found in a manual. I find that the appellant did not establish that there was an expectation of confidentiality with respect to this information. As these two records do not meet the part 2 test and no additional mandatory exemptions apply and no discretionary exemptions were claimed, they should be disclosed to the requester.

Part 3: harms

[50] The party resisting disclosure must provide detailed and convincing evidence about the potential for harm. It must demonstrate a risk of harm that is well beyond the merely possible or speculative although it need not prove that disclosure will in fact result in such harm. How much and what kind of evidence is needed will depend on the type of issue and seriousness of the consequences.¹⁹

[51] The failure of a party resisting disclosure to provide detailed and convincing evidence will not necessarily defeat the claim for exemption where harm can be inferred from the surrounding circumstances. However, parties should not assume that the harms under section 10(1) are self-evident or can be proven simply by repeating the description of harms in the Act .²⁰

[52] The appellant submits that the harms in subsections (a) and (c), set out above, could reasonably be expected to occur should the region disclose the record to the requester.

Appellant’s representations

[53] As stated above, the requester consented to the disclosure of his identity to the appellant, but provided no representations during my inquiry. The appellant identifies the requester as one of its competitors and states that disclosure can reasonably be expected to harm its competitive position and cause it undue loss given the requester’s identity.

[54] The appellant submits that it is in the business of supplying a variety of infrastructure products, such as pipelines, bridge components, engineered precast products and storm/sanitary products, and is regularly submitting proposals in response to procurements issued by public agencies, municipalities and contractors in Ontario and other jurisdictions. Disclosure of the records would provide the requester and other competitors with confidential information about its products pricing and specifications, according to the appellant. The requester and other competitors would use this information to prepare their own proposals in future procurement processes. This would prejudice the appellant’s competitive position in future procurement processes and contractual negotiations.

[55] The appellant argues that it would also suffer undue loss as disclosure would result in the requester gaining access to its product development information which it invested in. The appellant submits that the requester and other competitors would use the information gleaned from the records to replicate the appellant’s products and thus undermine the appellant’s chances of successfully competing in future procurement processes. The appellant emphasizes that its losses and any prejudice suffered would not only be limited to Ontario but also other jurisdictions where it competes for procurement projects.

[56] Lastly, the appellant submits that the expectation of harm is not speculative. The appellant argues that the fact that the requester is a competitor gives credence to its position that its business is competitive and the information at issue has value. The appellant states, It is evident that this request is motivated by [the requester’s] desire to obtain a commercial advantage by gaining access to [the appellant’s] non-public proprietary business information.

Analysis and finding

[57] The records at issue consist of emails, submittals, drawings and correspondence relating to the region’s water main project. The records do not contain the contract between the region and any of the parties; nor does it contain the appellant’s proposal for the project.

[58] Based on the appellant’s representations and my review of the records, I find that disclosure of some of the information could reasonably be expected to significantly prejudice its competitive position or result in undue loss to the appellant. I find that disclosure of the appellant’s calculations and technical drawings, as well as information about the pipe’s construction and manufacture could reasonably be expected to result in undue loss to the appellant as the appellant would have invested resources in these records that describe the design of the pipe. Accordingly, I find the following records, meet the third part of the test under section 10(1)  of the Act :

Document 9, 10, 11 (in part), 13 (in part), 14 (in part), 15 (in part), 24 (in part), 26 (in part), 37 (in part), 44 (in part), 49 (in part), 66 (in part), 68 (in part), 69, 75 (in part), 76 (in part), 78 (in part), 81 (in part), 88 (in part), 95 (in part), 103 (in part), 106 (in part), 107 (in part), 108 (in part), 110 (in part), 113 (in part), 115 (in part), 116 (in part), 118 (in part), 120 (in part), 121 (in part), 122 (in part), 123 (in part), 127 (in part), 131 (in part), 136 (in part), 137 (in part), 139 (in part), 141, 142 (in part), 147 (in part), 148 (in part), 150 (in part), 152 (in part), 153 (in part), 157 (in part), 158 (in part), 160 (in part), 161 (in part), 163 (in part), 164, 165 (in part), 167 (in part), 169 (in part), 170 (in part), 173 (in part), 174 (in part), 177 (in part), 178 (in part), 179 (in part), 180 (in part), 185 (in part), 194 (in part), 198 (in part), 199 (in part), 208 (in part), 215 (in part), 218 (in part), 225 (in part), 226 (in part), 227 (in part), 228 (in part), 232 (in part), 233 (in part), 236 (in part), 251 (in part), 260 (in part), 263 (in part), 264 (in part), 267 (in part), 269 (in part), 270 (in part), 272 (in part), 275 (in part).

[59] However, I find that disclosure of the remaining records could not reasonably result in prejudice to the appellant’s competitive position or result in undue loss to the appellant or undue gain to the appellant’s competitors. These records consist of the appellant’s responses to various issues surrounding the project or information submitted as part of a submittal. While these records contain commercial and some technical information, I find that it relates to the appellant’s attempts to respond to various complaints by CM2H Hill about the pipe’s construction. Many of these records relate to the type of steel used in the fabrication of the pipe and the appellant does not establish how disclosure of this information could be used by its competitors to gain competitive advantage over it, or how the appellant would suffer undue loss from the disclosure of this information.

[60] Accordingly, I find that this information would not aid the appellant’s competitors in future procurement proposals or in the development of their products. Furthermore, the appellant did not provide detailed and convincing evidence to establish that disclosure of this information would either result in prejudice to its competitive position or undue loss or gain. Moreover, it is not evident from the records themselves how this information could be used to the appellant’s prejudice or the requester’s gain.

[61] A number of the records which contain the examination reports or results of testing conducted on the pipe for the appellant are also not exempt under section 10(1). Again, the appellant has not established that disclosure of the test results for the steel or the pipes could be used by the requester or other competitors to gain a commercial advantage over the appellant. It is not evident to me from the information in these records that the appellant’s product development could somehow be reverse engineered or that the information contained therein could be used by the appellant’s competitors to improve their own products or to win procurement projects to the appellant’s detriment. I find that the harm is not established for these kinds of records and they are not exempt under section 10(1).

[62] Accordingly, with the exception of those records identified above, I find that the remaining records do not meet part three of the test for the application of section 10(1). As the region did not claim discretionary exemptions for these records and no other mandatory exemptions apply to them, they should be disclosed to the requester.

[63] For the information I have found to be exempt under section 10(1), I will now consider whether there exists a compelling public interest in the disclosure of this information which overrides the purpose of the section 10(1) exemption.

B. Is there a compelling public interest in disclosure of the records that overrides the purpose of the section 10(1) exemption?

[64] Section 16 states:

An exemption from disclosure of a record under sections 7, 9, 10, 11, 13 and 14 does not apply if a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption.

[65] For section 16 to apply, two requirements must be met. First, there must be a compelling public interest in disclosure of the records. Second, this interest must clearly outweigh the purpose of the exemption.

[66] The Act  is silent as to who bears the burden of proof in respect of section 16. This onus cannot be absolute in the case of an appellant who has not had the benefit of reviewing the requested records before making submissions in support of his or her contention that section 16 applies. To find otherwise would be to impose an onus which could seldom if ever be met by an appellant. Accordingly, the IPC will review the records with a view to determining whether there could be a compelling public interest in disclosure which clearly outweighs the purpose of the exemption.²¹

Compelling public interest

[67] In considering whether there is a public interest in disclosure of the record, the first question to ask is whether there is a relationship between the record and the Act ’s central purpose of shedding light on the operations of government.²² Previous orders have stated that in order to find a compelling public interest in disclosure, the information in the record must serve the purpose of informing or enlightening the citizenry about the activities of their government or its agencies, adding in some way to the information the public has to make effective use of the means of expressing public opinion or to make political choices.²³

[68] A public interest does not exist where the interests being advanced are essentially private in nature.²⁴ Where a private interest in disclosure raises issues of more general application, a public interest may be found to exist.²⁵

[69] The word compelling has been defined in previous orders as rousing strong interest or attention.²⁶

[70] As stated above, while I sought the requester’s representations, I did not receive any submissions from him. Normally, when information is requested about an infrastructure project for an institution, the public interest in the information relates to accountability for the expenditure of public funds. In this case, I have not been presented with this argument. Furthermore, the requester has identified himself as one of the appellant’s competitors and thus his interest in the records appears to be a private interest and not a public one. Lastly, based on the records I have ordered disclosed, including the pricing information in Document 98, I find that disclosure of the information that I have withheld, would not serve the purpose of enlightening the citizenry on the region’s activities.

[71] Accordingly, as I am not able to find a compelling public interest in the disclosure of the records at issue, I find that section 16 does not apply.

ORDER:

1. 1. I uphold the region’s decision to disclose some of the records to the requester by providing him with a copy of the records, in accordance with the information that I have highlighted on the records accompanying the region’s order by January 12, 2015 but not before January 5, 2015. To be clear, the highlighted information should not be shared with the requester.
2. 2. I order the region to withhold the remaining records from disclosure.

Original signed by: Stephanie Haly Adjudicator

December 2, 2014

APPENDIX

INDEX OF RECORDSCATEGORIZED BY THE APPELLANT

Document number	Page Number	Record Description	Category	Finding
1	1 – 6	Email and attached letter re: terms and conditions of acceptance of CPP	1	Disclose
2	7 – 9	Email and attached letter re: pipe handling instructions	1	Disclose
3	10 – 11	Email and stop work order re: installation methods of pipe installation	5	Disclose
4	12 – 14	Email and attachment re: timeline of issues	1	Disclose
5	15 – 16	Varcon letter re: response to Feb. 17 letter	2	Disclose
6	17 – 27	CH2M letter Varcon re: pipe installation issues with pictures	1	Disclose
7	28	Varcom email to CH2M re: Pipe Changes Response	1	Disclose
8	29 – 30	Letter from appellant to Varcon Re: Pipe installation	2	Disclose
9	31 – 32	Letter from appellant to Varcon re: Joint gap calculation	3	Withhold
10	33 – 34	Letter from appellant to Varcon re: joint field modification detail	3	Withhold
11	35 – 37	Letter from CH2M to Varcon re: CPP Compliance concerns –May 9/12	1	Withhold, in part
12	38 – 40	Abbreviated timeline – summary of main issues	6	Disclose
13	41 – 48	Visual examination report – Aug. 20/12 with diagrams	1	Withhold, in part
14	49 – 57	Visual Examination Report – July 3, 2012	1	Withhold, in part
15	58 – 67	Visual Examination Report – Oct. 11/12	1	Withhold, in part
16	68 – 77	Stop Work Order #2 – June 28/12 letter	5	Disclose
17	78 – 79	Letter RE: Pipe Modification concerns	1	Disclose
18	80 – 81	Letter re: pipe installation	1	Disclose
19	82 – 83	Email re: summary of outstanding items	2	Disclose
20	84 – 85	Weekly summary of work	1	Disclose
21	86 – 87	Follow up on email re: outstanding responses	1	Disclose
22	88 – 89	Letter re: terms and conditions for the acceptance of CPP	1	Disclose
23	90	Email re: costs associated with water for testing	1	Disclose
24	91 – 98	Visual Inspection Report – May 8, 2012	1	Withhold, in part
25	99	Pipe issues	1	Disclose
26	100 – 107	Visual Examination Report May 15, 2012	1	Withhold, in part
27	108 – 113	Request for clarification on pipe handling	1	Disclose
28	114	Stop Work Order – June 20, 2012	5	Disclose
29	115 – 118	Email and attachment re: pipe QA/QC documentation	1	Disclose
30	119	Email re: cement lining repairs	1	Disclose
31	120 – 121	Email re: acceptance of terms and conditions	1	Disclose
32	122 – 125	Emails re: CPP warranty	1	Disclose
33	126 – 129	Letter re: Terms and conditions of the acceptance of the CPP	2	Disclose
34	130 – 136	Emails re: CPP warranty	1	Disclose
35	137 – 143	Emails re: terms and conditions for the acceptance of	1	Disclose
36	144 – 147	Emails re: stop work order #2	1	Disclose
37	148 – 151	Emails re: tie rods	2	Withhold, in part
38	152 – 158	Emails re: Hanlan feedermain temporary AFO installation update	1	Disclose
39	159 – 161	Emails re: lakefront promenade schedule	1	Disclose
40	162 – 164	Emails re: arranging meeting with appellant	1	Disclose
41	165 – 167	Emails re: pipe changes	2	Disclose
42	168 – 179	Emails re: warranty letter drafts	2	Disclose
43	180 – 190	Emails re: terms and conditions for acceptance of CPP	1	Disclose
44	191 – 194	Emails re: tie rods	2	Withhold, in part
45	195	Email re: submittal 056	1	Disclose
46	196 – 197	Email re: weekly activity report	1	Disclose
47	198 – 200	Emails re: warranty letter draft	2	Disclose
48	201	Emails re: cement lining repairs	1	Disclose
49	202 – 214	Emails re: concrete base slabs	2	Withhold, in part
50	215 – 223	Emails re: critical review items	2	Disclose
51	224 – 240	Varcon submittal 060	3	Disclose
52	241 – 243	Emails re: stop work order #2	2	Disclose
53	244 – 247	Emails re: terms and conditions for the acceptance of	1	Disclose
54	248 – 250	Emails and attachment re: appellant certificate	6	Disclose
55	251	Email re: pipe damage during welding	1	Disclose
56	252 – 254	Emails re: CPP warranty – pressure testing	1	Disclose
57	255 – 257	Letters re: terms and conditions for the acceptance of the	2	Disclose
58	258 – 269	Emails and attachments re: acceptance of terms and conditions Nov 15	1	Disclose
59	270 – 273	Emails and attachment re: outstanding pipe issues	1	Disclose
60	274 – 278	Email and attachment re: remaining outstanding issues	2	Disclose
61	279 – 281	Emails re: stop work order #2 – notching	1	Disclose
62	282 – 283	Emails re: Hanlan contract 1 south AFO	1	Disclose
63	284 – 291	Emails re: Hanlan CPP Resolution	1	Disclose
64	292 – 293	Emails re: pressure test	1	Disclose
65	294 – 295	Emails re: damage during welding	1	Disclose
66	296 - 298	Varcon submittal	1	Withhold, in part
67	299 – 302	Emails and attachment re: pressure testing procedures	6	Disclose
68	303 – 305	Letters re: pipe issues	2	Withhold, in part
69	306 – 307	Letter re: joint gap	3	Withhold
70	308 – 312	Varcon letter and appellant response: outstanding pipe issues	2	Disclose
71	313 – 332	Appellant letter and supporting test certificates re: issues	2	Disclose
72	333	Stop work order #2	5	Disclose
73	334 – 338	Letter re: terms and conditions for the acceptance of CPP	2	Disclose
74	339	Varcon Letter re: outstanding pipe issues	1	Disclose
75	340 – 349	CH2M letter and diagrams: joint repairs	3	Withhold, in part
76	350 – 361	Submittal #064 and attachments	3	Withhold, in part
77	362 – 365	CH2M letter re: remaining outstanding issues	1	Disclose
78	366 - 369	CH2M Letter re: pipe QA/QC documentation	3	Withhold, in part
79	370 – 372	Submittal #067	2	Disclose
80	373 – 375	CH2M letter re: outstanding issues	1	Disclose
81	376 – 378	CH2M letter re: Hanlan feedermain – May 9, 2012	1	Withhold, in part
82	379 – 380	CH2M letter re: pipe QA/QC June 22/12	1	Disclose
83	381 – 382	CH2M letter re: pipe QA/QC June 25/12	1	Disclose
84	383 – 384	Email re: Hanlan action items	2	Disclose
85	385 – 386	CH2M letter re: pipe installation letter from appellant June 20/12	1	Disclose
86	387 – 388	CH2M letter re: pipe handling instructions	1	Disclose
87	389 – 390	Email re: certification of pipe placement methodology/stop work order	5	Disclose
88	391 – 393	Hanlan Feedermain contract – May 9/12	1	Withhold, in part
89	394 – 404	CH2M letter and attached photos – Feb. 24/12	1	Disclose
90	405 – 406	CH2M letter re: field changes – Feb. 16/12	1	Disclose
91	407 – 409	CH2M letter – Nov. 15/12	1	Disclose
92	410 – 411	CH2M letter – Nov. 9/12	1	Disclose
93	412 – 413	CH2M letter – Sept. 26/12	1	Disclose
94	414 – 415	CH2M letter – Aug. 17/12	1	Disclose
95	416 – 418	CH2M letter – Aug. 2/12	1	Withhold, in part
96	419 – 420	CH2M letter – July 23/12	1	Disclose
97	421 – 423	CH2M letter re: remaining outstanding items with CPP	1	Disclose
98	424 – 427	Appellant invoice	4	Disclose
99	428 – 429	Stop work order	5	Disclose
100	430 – 433	RFI #006	1	Disclose
101	434 – 437	RFI #008	1	Disclose
102	438 – 440	RFI #010	1	Disclose
103	441 – 446	RFI #007	1	Withhold, in part
104	447 – 448	RFI #011	1	Disclose
105	449 – 456	RFI #014/15	1	Disclose
106	457 – 525	Submittal #001 a & b and review of submittal and drawings	3	Withhold, in part
107	526 – 546	Review of submittal 001b	3	Withhold, in part
108	547 – 568	Submittal #006 and review	1	Withhold, in part
109	569 – 581	Submittal #019 and review	6	Disclose
110	582 – 621	Submittal #021 and review	3	Withhold, in part
111	622 – 630	Submittal #033 and review	5	Disclose
112	631 – 673	Submittal #038 and review (and invoices)	6	Disclose
113	674 – 694	Submittal #048 and review	3	Withhold, in part
114	695 – 704	Submittal #050 and review	5	Disclose
115	705 – 835	Submittal #055a and review (drawings and calculations)	3	Withhold, in part
116	836 – 918	Submittal #056 and review	3	Withhold, in part
117	919 – 942	Installation and operation of computer program	6	Disclose
118	943 – 947	Submittal #056 – 2nd portion	3	Withhold, in part
119	948 – 971	Installation and operation of computer program	6	Disclose
120	972 – 1102	Submittal #056 – 3rd portion	3	Withhold, in part
121	1103 – 1135	Submittal #057 and review	3	Withhold, in part
122	1136 – 1142	Submittal #060 and review	3	Withhold, in part
123	1143 – 1165	Submittal #064 and review	3	Withhold, in part
124	1166 – 1172	Submittal #067 and review	6	Disclose
125	1173 – 1184	Email and attached letter and photos	1	Disclose
126	1185 – 1191	Email and attachment: progress meeting	1	Disclose
127	1192 – 1197	Emails and attached letter re: CPP – Mar. 13/12	2	Withhold in part
128	1198 – 1199	Letter re: joint gap; letter dated Mar. 6	1	Withhold
129	1200 – 1210	Duplicate of Document 125	1	Disclose
130	1211 – 1229	Email re: example calculations	1	Disclose
131	1230 – 1233	Email and letter re: outstanding pipe issues – July 31/12	1	Withhold, in part
132	1234 – 1239	Emails re: CPP warranty	1	Disclose
133	1240 – 1243	Letter re: remaining outstanding items – July 9/12	1	Disclose
134	1244 – 1250	Emails re: terms and conditions	1	Disclose
135	1251 – 1260	Emails and attachment	2	Disclose
136	1261 – 1270	Submittal #055	3	Withhold, in part
137	1271 – 1286	Submittal #001	3	Withhold, in part
138	1287 – 1289	Emails and attached letters re: damaged pipe	2	Disclose
139	1290 – 1295	Emails re: response from appellant	2	Withhold, in part
140	1296 – 1298	Emails re: Pipe QA/QC concerns	1	Disclose
141	1299 – 1300	Email re: additional review of submittal #055	1	Withhold
142	1301 – 1304	Letter re: remaining outstanding letters – July 31/12	1	Disclose, in part
143	1305 – 1309	Emails and attached letters re: terms and conditions for acceptance of CPP	1	Disclose
144	1310 – 1312	Emails and attachments re: pipe issues	1	Disclose
145	1313 – 1315	RFQ #006	1	Disclose
146	1316 – 1320	Email and letter re: pipe issues	1	Disclose
147	1321 – 1325	Email and attachments –timelines and issues	2	Withhold, in part
148	1326 – 1336	Letter dated Mar.6/12 – response to Feb. 24 letter	1	Withhold, in part
149	1337	Varcon letter re: pipe changes	2	Disclose
150	1338 – 1339	Appellant response Mar. 7	2	Withhold, in part
151	1340 – 1343	Appellant email: joint gap – May 1/12	3	Withhold
152	1344 – 1349	CH2M reply letter and attachments May 9	1	Withhold, in part
153	1350 – 1360	Welding report Oct. 11	3	Withhold, in part
154	1361 – 1363	Welding report Sept. 10	6	Disclose
155	1364	Email re: welding reports	1	Disclose
156	1365 – 1366	Letter re: contract	1	Disclose
157	1367 – 1371	Submittal #064	3	Withhold, in part
158	1372 – 1384	Submittal #067	3	Withhold, in part
159	1385 – 1387	Contract	1	Disclose
160	1388 – 1393	Submittal #064	6	Withhold, in part
161	1394 – 1406	Submittal #067	3	Withhold, in part
162	1407 – 1410	Sept. 26/12 Letter	1	Disclose
163	1411 – 1413	CH2M response letter	1	Withhold, in part
164	1414 – 1415	Appellant letter May 1	3	Withhold
165	1416 – 1420	Varcon appellant letter response, Mar. 13/12 and Apr. 18/12	2	Withhold, in part
166	1421 – 1423	CH2M letter	1	Disclose
167	1424 – 1494	Submittal #001 – July 31/12	3	Withhold, in part
168	1495 – 1499	Email and attachment – June 28/12	1	Disclose
169	1500 – 1506	Letters	1	Withhold, in part
170	1507 – 1511	Email re: Hanlan action items – Aug. 2/12	2	Withhold, in part
171	1512 – 1514	Email re: outstanding pipe issues	1	Disclose
172	1515 – 1519	Email and attachment	2	Disclose
173	1520 – 1528	Email and attachment – July 9/12	1	Withhold, in part
174	1529 – 1544	Email re: stop work order form (June 28/12 and May 9/12)	5	Withhold, in part
175	1545 – 1546	Email re: Hanlan action items	2	Disclose
176	1547 – 1552	Email re: terms and conditions	1	Disclose
177	1553 – 1575	Email and attachment (Feb. 24/12 and Feb. 16/12)	2	Withhold, in part
178	1576 – 1586	Transmittal#056	3	Withhold, in part
179	1587 – 1597	Transmittal #001	3	Withhold, in part
180	1598 – 1612	Review of submittal	3	Withhold, in part
181	1613 – 1615	Email – Sept. 26/12 letter	1	Disclose
182	1616 – 1619	Email - Nov. 15/12 letter	1	Disclose
183	1620 – 1623	Email	1	Disclose
184	1624 – 1644	Email and test results	6	Disclose
185	1645 – 1652	Email	6	Withhold, in part
186	1653 – 1670	Hanlan Site Meeting #10	1	Disclose
187	1671 – 1689	Hanlan Site Meeting#11	1	Disclose
188	1690 – 1706	Hanlan Site Meeting #12	1	Disclose
189	1707 – 1725	Hanlan Site Meeting #13	1	Disclose
190	1726 – 1744	Hanlan Site Meeting #15	1	Disclose
191	1745 – 1762	Hanlan Site Meeting #16	1	Disclose
192	1763 – 1780	Hanlan Site Meeting #17	1	Disclose
193	1781 – 1785	Emails	6	Disclose
194	1786 – 1789	Email	3	Withhold, in part
195	1790 – 1793	Email	1	Disclose
196	1794 – 1796	Email	1	Disclose
197	1797 – 1805	Emails	1	Disclose
198	1806 – 1808	Letter Aug. 2/12	1	Withhold, in part
199	1809 – 1858	Emails – July 9/12 letter	1	Withhold, in part
200	1859 - 1861	Email	1	Disclose
201	1862 – 1864	Email	1	Disclose
202	1865 – 1867	Email	1	Disclose
203	1868 – 1876	Varcon contract change	5	Disclose
204	1877 – 1898	Email	1	Disclose
205	1899 – 1956	Email	1	Disclose
206	1957 – 1958	Email	1	Disclose
207	1959	Email	1	Disclose
208	1960 – 1965	Email	1	Withhold, in part
209	1966 – 1979	Email	1	Disclose
210	1980 – 2012	Email	2	Disclose
211	2013 – 2014	Letter – Aug. 17/12	1	Disclose
212	2015 – 2031	Emails	1	Disclose
213	2032 – 2034	Letter – Aug. 16/12	1	Disclose
214	2035 – 2038	Emails	1	Disclose
215	2039 – 2044	Varcon Letter – Aug. 3/12	3	Withhold, in part
216	2045 – 2072	Emails and attachment	2	Disclose
217	2073 – 2100	Emails and attachment	1	Disclose
218	2101 – 2200	Submittal 001a – Nov. 18/22 and July 11/12 letter	3	Withhold, in part
219	2201 – 2205	Remaining outstanding issues – July 11/12	2	Disclose
220	2206 – 2209	Emails – stop work order	5	Disclose
221	2210 – 2219	Emails	1	Disclose
222	2220 – 2227	Emails	1	Disclose
223	2228 – 2229	Emails	2	Disclose
224	2230 – 2243	Emails	1	Disclose
225	2244 – 2286	Submittal 056c &d	3	Withhold, in part
226	2287 – 2328	Submittal 001a review – Nov. 18/11	3	Withhold, in part
227	2329 – 2339	Submittal 001b	3	Withhold, in part
228	2340 – 2353	Submittal 021	3	Withhold, in part
229	2354 – 2357	Submittal 033	2	Disclose
230	2358 – 2378	Submittal 038	6	Disclose
231	2379 – 2382	Submittal 050	2	Disclose
232	2383 – 2420	Submittal 055 – June 25/12	3	Withhold, in part
233	2421 – 2442	Submittal 056 – May 1/12	3	Withhold, in part
234	2443 – 2445	Submittal 060	2	Disclose
235	2446 – 2450	Email	1	Disclose
236	2451 – 2514	Submittal 045 review	3	Withhold, in part
237	2515 – 2520	Email	1	Disclose
238	2521 – 2522	Letter Nov. 7/12	1	Disclose
239	2523 – 2534	Emails	1	Disclose
240	2535 – 2536	Terms and conditions	1	Disclose
241	2537 – 2538	Email	6	Disclose
242	2539 – 2556	May 24 status meeting	1	Disclose
243	2557 – 2576	Email	6	Disclose
244	2577 – 2597	Emails	1	Disclose
245	2598 – 2601	Emails	1	Disclose
246	2602 – 2603	Emails	1	Disclose
247	2604 – 2606	Emails	1	Disclose
248	2607 – 2611	Emails	1	Disclose
249	2612	Emails	1	Disclose
250	2613	Email	1	Disclose
251	2614 – 2624	Letter Feb. 16/12; Mar. 6/12	1	Withhold, in part
252	2625 – 2626	Email	1	Disclose
253	2627 – 2628	Email	1	Disclose
254	2629 – 2630	Letter	1	Disclose
255	2631 – 2632	Emails	1	Disclose
256	2633	Stop work order	5	Disclose
257	2634	Pipe handling concerns	1	Disclose
258	2635 – 2636	Letter	1	Disclose
259	2637 – 2646	Emails	1	Disclose
260	2647 – 2652	Email	3	Withhold, in part
261	2653 – 2655	Email	1	Disclose
262	2656 – 2658	Email	2	Disclose
263	2659 – 2706	Email	3	Withhold, in part
264	2707 – 2724	Emails	3	Withhold, in part
265	2725 – 2730	Email	2	Disclose
266	2731 – 2753	Email	6	Disclose
267	2754 – 2818	Email	3	Withhold, in part
268	2819 – 2827	Email	2	Disclose
269	2828 – 2858	Email	3	Withhold, in part
270	2859 – 2948	Email	3	Withhold, in part
271	2949 – 2953	Email	2	Disclose
272	2954 – 2962	Email	1	Withhold, in part
273	2963 – 2970	Email	6	Disclose
274	2971 – 2974	Email and attachment	1	Disclose
275	2975 – 2981	Email	3	Withhold, in part
276	2982 – 2987	Email	6	Disclose
277	2988 – 2990	Email	1	Disclose

---

¹ Boeing Co. v. Ontario (Ministry of Economic Development and Trade), [2005] O.J. No. 2851 (Div. Ct.)], leave to appeal dismissed, Doc. M32858 (C.A.) (Boeing Co.).

² Orders PO-1805, PO-2018, PO-2184 and MO-1706.

³ Order PO-2010.

⁴ Order PO-2010.

⁵ Order PO-2010.

⁶ Order P-1621.

⁷ Order PO-2010.

⁸ Order MO-1706.

⁹ Orders PO-2020 and PO-2043.

¹⁰This approach was approved by the Divisional Court in Boeing Co., cited above, and in Miller Transit Limited v. Information and Privacy Commissioner of Ontario et al., 2013 ONSC 7139 (CanLII) (Miller Transit).

¹¹ Order MO-1706, cited with approval in Miller Transit, above at para. 33.

¹² Miller Transit, above at para. 34.

¹³ Order PO-2020.

¹⁴ Orders PO-2043, PO-2371 and PO-2497, upheld in Canadian Medical Protective Association v. Loukidelis, 2008 CanLII 45005 (ON SCDC); 298 DLR (4th) 134; 88 Admin LR (4th) 68; 241 OAC 346.

¹⁵ CH2M Hill is the engineering firm hired by the region to oversee the project. Varcon Construction Corporation is the general contractor for the project.

¹⁶ I note that several references in the record refer to the fact that CH2M Hill was the agent for the region, including page 257.

¹⁷ Order MO-2115, page 14.

¹⁸ Order MO-2787-I, page 37.

¹⁹ Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), 2014 SCC 31 (CanLII) at paras. 52-4.

²⁰ Order PO-2435.

²¹ Order P-244.

²² Orders P-984 and PO-2607.

²³ Orders P-984 and PO-2556.

²⁴ Orders P-12, P-347 and P-1439.

²⁵ Order MO-1564.

²⁶ Order P-984.