Accenture Inc. v. Information and Privacy Commissioner (Ont.), 2016 ONSC 1616

• Judge: Sachs, Thorburn and Lemay, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: March 01, 2016
• Jurisdiction: Ontario
• Citations: 2016 ONSC 1616;(2016), 347 O.A.C. 144 (DC)

Accenture Inc. v. Privacy Commr. (2016), 347 O.A.C. 144 (DC)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. MR.012

Accenture Inc. (applicant) v. Ontario (Information and Privacy Commissioner) (respondent) and Metrolinx (respondent)

(DC-15-154; 2016 ONSC 1616)

Indexed As: Accenture Inc. v. Information and Privacy Commissioner (Ont.)

Court of Ontario

Superior Court of Justice

Divisional Court

Sachs, Thorburn and Lemay, JJ.

March 7, 2016.

Summary:

A member of the public made a request for information relating to the "PRESTO" fare-card agreement between Accenture Inc. and Ontario's Ministry of Transportation. Changes had been made to the PRESTO contract from time to time, resulting in increased costs. The Information and Privacy Commissioner found that the Change Notices contained commercial information but were not "supplied" by Accenture, and ordered that they be disclosed. She further held that the Detailed Feasibility Notices, provided in response to the Change Notices, contained commercial information and were supplied in confidence, but that the prospect of disclosure did not give rise to a reasonable expectation of harm. She ordered that parts of the Detailed Feasibility Notices, but not the substance of Accenture's proposed solutions, be produced. Accenture applied for judicial review. The application concerned the interpretation and application of ss. 17 and 53 of the Freedom of Information and Protection of Privacy Act.

The Ontario Divisional Court, on the standard of review of reasonableness, dismissed the application.

Crown - Topic 7103.6

Examination of public documents - General - Supplied defined - [See Crown - Topic 7168.1 ].

Crown - Topic 7168.1

Examination of public documents - Freedom of information - Legislation - Disclosure of details of contract to supply goods or services to public body - A member of the public requested information relating to the "PRESTO" fare-card agreement between Accenture Inc. and Ontario's Ministry of Transportation - Changes had been made to the contract from time to time, resulting in increased costs - The Information and Privacy Commissioner found that the Change Notices (the product of negotiations) contained commercial information but were not "supplied" by Accenture within the meaning of the Freedom of Information and Protection of Privacy Act, and ordered that they be disclosed - She also ordered that parts of the Detailed Feasibility Notices (provided in response to the Change Notices) be produced - On judicial review, Accenture argued that it provided most of the Change Notice content, and that the information redacted in the Detailed Feasibility Notices should be redacted from the Change Notices - The Ontario Divisional Court held that the Commissioner's decision was reasonable - (i) The Detailed Feasibility Notices were more detailed than the Change Notices - (ii) Accenture chose not to articulate what information in the Change Notices came from it and why that information should be protected - (iii) Thereafter, the Crown provided information to the Commissioner suggesting that the documents in issue be produced and why - Accenture chose not to respond - (iv) The Change Notices were not supplied by Accenture whereas the Detailed Feasibility Notices were supplied by it - See paragraphs 20 to 33.

Crown - Topic 7214.1

Examination of public documents - Freedom of information - Bars - Commercial, financial or labour relations information - [See Crown - Topic 7168.1 ].

Crown - Topic 7220.04

Examination of public documents - Freedom of information - Bars - Reasonable expectation of probable harm - The applicant sought judicial review of the Information and Privacy Commissioner's Order to disclose certain documents requested by a member of the public - The applicant claimed that the Commissioner used the wrong legal test to determine whether there was a reasonable expectation of harm to the applicant - The Ontario Divisional Court, on a review of the jurisprudence, stated that "[w]hat these decisions make clear is that the quality of the evidence that must be produced to satisfy the existence of a reasonable expectation of probable harm depends on the context in which the decision is being made. ... In this case, given the nature of the information at issue, the Commissioner found that to satisfy her that there was a reasonable expectation of probable harm the evidence before her had to be detailed and convincing. There is nothing unreasonable about this conclusion. Further, there can be no suggestion that the Commissioner in this case used the 'detailed and convincing' formulation to create a different standard of proof than the applicable one of balance of probabilities." - See paragraphs 34 to 41.

Crown - Topic 7220.04

Examination of public documents - Freedom of information - Bars - Reasonable expectation of probable harm - A member of the public made a request for information relating to the "PRESTO" fare-card agreement between Accenture Inc. ("the applicant") and Ontario's Ministry of Transportation - The Applicant claimed that disclosing the records would result in several significant harms - The Information and Privacy Commissioner ordered disclosure of certain documents - The Ontario Divisional Court held that the Commissioner reasonably concluded that disclosure of the records would not harm the applicant - The applicant provided no specifics to support its assertions nor did it provide information from which to make inference arising from surrounding circumstances - "The Commissioner was not prepared to infer harm from the disclosure of information that was general and contained no concrete examples. The Commissioner is not required to accept theories of potential harm that are vague or devoid of a proper factual basis. Accordingly, the Commissioner made the reasonable finding that the risk of harm was not well beyond or considerably above a mere possibility of harm. The Applicant has the onus of establishing the alleged harms and failed to do so." - See paragraphs 43 to 51.

Crown - Topic 7283

Examination of public documents - Freedom of information - Practice - Evidence and proof - [See both Crown - Topic 7220.04 ].

Cases Noticed:

Workers' Compensation Board (Ont.) v. Information and Privacy Commissioner (Ont.) (1998), 112 O.A.C. 121; 41 O.R.(3d) 464 (C.A.), refd to. [para. 18].

Canadian Medical Protective Association v. Loukidelis et al. (2008), 241 O.A.C. 346; 298 D.L.R.(4th) 134 (Div. Ct.), refd to. [para. 18].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 19].

Boeing Co. v. Ontario (Minister of Economic Development and Trade) et al. (2005), 200 O.A.C. 134 (Div. Ct.), refd to. [para. 20].

Ontario (Attorney General) v. Pascoe et al. (2002), 166 O.A.C. 88; 2002 CanLII 30805 (C.A.), refd to. [para. 37].

Ontario (Minister of Community Safety and Correctional Services) v. Information and Privacy Commissioner (Ont.) et al., [2014] 1 S.C.R. 674; 457 N.R. 2; 320 O.A.C. 1; 2014 SCC 31, refd to. [para. 39].

Merck Frosst Canada Ltd. v. Canada (Minister of Health), [2012] 1 S.C.R. 23; 426 N.R. 200; 2012 SCC 3, refd to. [para. 39].

Information Commissioner (Can.) v. Prime Minister (Can.), [1993] 1 F.C. 427; 57 F.T.R. 180 (T.D.), refd to. [para. 44].

Statutes Noticed:

Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, sect. 17(1) [para. 3]; sect. 53 [para. 4].

Counsel:

Colin Baxter, for the applicant;

Lawren Murray, for the respondent, Information and Privacy Commissioner;

John B. Laskin, for the respondent, Metrolinx.

This application for judicial review was heard at Toronto, Ontario, on March 1, 2016, before Sachs, Thorburn and Lemay, JJ., of the Ontario Divisional Court. In reasons written by Thorburn, J., the Court delivered the following judgment, released on March 7, 2016.