HKSC Developments L.P. v. Infrastructure Ontario et al., (2013) 316 O.A.C. 171 (DC)

• Judge: C. McKinnon, Himel and Wilton-Siegel, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: October 15, 2013
• Jurisdiction: Ontario
• Citations: (2013), 316 O.A.C. 171 (DC);2013 ONSC 6776

HKSC Dev. LP v. Infrastructure Ont. (2013), 316 O.A.C. 171 (DC)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. FE.034

HKSC Developments L.P. (applicant) v. Infrastructure Ontario and Information and Privacy Commissioner of Ontario (respondents)

(263/12; 2013 ONSC 6776)

Indexed As: HKSC Developments L.P. v. Infrastructure Ontario et al.

Court of Ontario

Superior Court of Justice

Divisional Court

C. McKinnon, Himel and Wilton-Siegel, JJ.

November 28, 2013.

Summary:

HKSC Developments Ltd. and the Province of Ontario entered into an agreement respecting the redevelopment and operation of various highway service stations. An Information and Privacy Commissioner adjudicator ordered Infrastructure Ontario to disclose information contained in schedules to the agreement. The adjudicator found that the information was not exempt from disclosure under the third party information exemption found in s. 17 of the Freedom of Information and Protection of Privacy Act. HKSC applied for judicial review.

The Ontario Divisional Court dismissed the application.

Crown - Topic 7214.1

Examination of public documents - Freedom of information - Bars - Commercial, financial, labour relations, scientific or technical information - HKSC Developments Ltd. and the Province of Ontario entered into a contract for the redevelopment and operation of highway service stations - An individual submitted an access to information request for a copy of the contract - Infrastructure Ontario refused to provide certain schedules of the contract on the basis that they were exempt from disclosure under the third party information exemption found in s. 17 of the Freedom of Information and Protection of Privacy Act - An Information and Privacy Commissioner adjudicator found that some portions of the contract were exempt from disclosure under s. 17, such as information that included fixed underlying costs of HKSC and agreements between HKSC and third parties - The adjudicator ordered that all other information be disclosed because it was generated through the negotiation process and could not be said to have been "supplied" by HKSC under s. 17 - The adjudicator concluded that HKSC failed to provide a sufficient explanation as to how the information required to be disclosed would permit inferences to be drawn regarding various components of its business model - The Ontario Divisional Court dismissed HKSC's application for judicial review - Information in a contract was typically the product of a negotiation process between the parties - The content of a negotiated contract involving a government institution and another party would not normally qualify as having been "supplied" - The adjudicator's decision was reasonable, consistent with the policy of the Act, and internally consistent - The protected information was qualitatively different from the information ordered to be disclosed, which included numerous operational details with Infrastructure Ontario, including the split of proceeds of any future sale or refinancing.

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. 8].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 20].

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. 21].

Mills v. Workplace Safety and Insurance Appeals Tribunal (Ont.) (2008), 237 O.A.C. 71; 2008 ONCA 436, refd to. [para. 22].

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. 26].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 28].

Boeing Co. v. Ontario (Minister of Economic Development and Trade) et al. (2005), 200 O.A.C. 134; 2005 CanLII 24249 (Div. Ct.), refd to. [para. 31].

Kitchener (City) v. Information and Privacy Commissioner (Ont.) et al. (2012), 293 O.A.C. 376; 2012 ONSC 3496 (Div. Ct.), refd to. [para. 31].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 35].

Canada Post Corp. v. Public Service Alliance of Canada et al., [2011] 2 F.C.R. 221; 399 N.R. 127; 2010 FCA 56, affd. [2011] 3 S.C.R. 572; 423 N.R. 117; 2011 SCC 57, refd to. [para. 35].

Counsel:

Robert Wisner and Adrienne Boudreau, for the applicant;

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

No one appearing for Infrastructure Ontario.

This application for judicial review was heard at Toronto, Ontario, on October 15, 2013, before C. McKinnon, Himel and Wilton-Siegel, JJ., of the Ontario Divisional Court. Himel, J., delivered the following judgment for the court on November 28, 2013.