Park Place Seniors Living Inc v Alberta Health Services, 2017 ABQB 575

Court of Queen’s Bench of Alberta Citation: Park Place Seniors Living Inc v Alberta Health Services, 2017 ABQB 575 Date: 20170927 Docket: 1403 14421 Registry: Edmonton Between: Park Place Seniors Living Inc., Hardisty Care Centre Ltd. and Revera Inc. Applicants - and - Alberta Health Services, Alberta Union of Provincial Employees, Shepherd’s Care Foundation, Carewest, Extendicare Inc., The Good Samaritan Society (A Lutheran Social Service Organization), Touchmark at Wedgewood (Edmonton) Inc., Covenant Health operating as St.

Joseph's Auxiliary Hospital, and Information and Privacy Commissioner Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Table of Contents A. Introduction . 3 B. Background . 4

C. Arguments of Applicants . 5 a. Park Place and Revera . 5 b. Shepherd’s Care . 6 c. Extendicare . 6 D. Responses . 6 a. AUPE . 6 b. Office of the Privacy Commissioner 7 E. Case law .. 7 a. Park Place/Revera . 7 b. Shepherd’s Care . 8 c. Extendicare . 8 d. AUPE . 9 e. OIPC .. 10 F. Statutory provisions . 11 G. Order F2014-35 (Adjudicator’s Decision) 12 a. Application of

section 16 . 13 b. Application of s 25 by AHS . 17 c. Personal Information . 20 H. Standard of Review .. 20 I. Park Place/Revera – Analysis of Arguments . 21 a. The Adjudicator erred in misinterpreting or misapplying the “harm test” by declining to consider contextual or external factors relevant to the application of Sections 16(1) and 25(1) of FOIPPA .. 22 b. The Adjudicator erred in failing to consider relevant contextual matters regarding the Records, the Parties and their relationship in applying Sections 16(1) and 25(1) of FOIPPA .. 26 c. The Adjudicator erred in misinterpreting or misapplying the “harm test” and by taking a narrow

interpretation of what evidence is relevant to showing a reasonable expectation of harm .. 36 J. Shepherd’s Care – Analysis of Arguments . 37 a. The records are exempt from disclosure under sections 16 and 25 . 37 b. Shepherd’s Care is covered by PIPA and not FOIPPA .. 39 c. The Adjudicator erred by failing to find that Shepherd’s Care is a third party under

section 16 and not a public body under

section 25 . 39 d. The Adjudicator set the standard for proving harm too high . 39 e. The records are confidential and should not be disclosed under the “confidential communication doctrine” 40 K. Extendicare – Analysis of Arguments . 42 a. The Adjudicator failed to apply or properly apply the harms test under sections 16 and 25 . 43 b. The Adjudicator unreasonably failed to consider relevant evidence . 47 c. The Adjudicator erred in failing to consider essential issues . 50 L. Other issues . 54 a. Protected personal information . 54 b. Labour Relations disclosure . 54

M. Conclusion. 55 A. Introduction [1] This is a judicial review application from a decision of the Information and Privacy Commissioner (the “Commissioner”)concerning production of financial information from the Applicant nursing homes to the Alberta Union of Provincial Employees(“AUPE”). [2] In a decision dated August 29, 2014 and filed as Order F2014-35, (AB OIPC) (the “Order”), theAdjudicator directed the Applicants to produce financial information they had provided to Alberta Health Services (“AHS”) to AUPE.The Applicants had objected to production of this information and seek judicial review of the Order.

Other nursing home operatorsaffected by the Order did not object to production and took no

part in this application. B. Background [3] On January 19, 2012, AUPE filed an access request to AHS seeking production of audited financial returns for 15 continuingcare contractors for the fiscal years 2009-2010 and 2010-2011. These continuing care contractors operated nursing homes in variouslocations in Alberta.

They had contracts with AHS relating to AHS contributions to the cost of care for residents in nursing homes.Under the terms of their contracts with AHS, the contractors were required to provide audited financial returns to AHS, giving details asto various aspects of their nursing home business. [4] The audited financial returns followed a format specified by AHS. These returns should be contrasted with the auditedfinancial statements of the contractors, which were not required to be given to AHS.

The audited financial returns are required by AHSfor compliance by the nursing home with AHS’s “Facility Reporting User Manual.” They contain information specific to the operator’scontinuing care operations. [5] In 2012, AUPE had a bargaining relationship with some of the contractors and were in contract negotiations or anticipatedthat contract negotiations would begin soon with some of the contractors. [6] AHS initially decided to sever some of the information from the financial returns under

section 16 of the Freedom ofInformation and Protection of Privacy Act, RSA 2000, c F-25 (“FOIPPA”). That

section relates to disclosure harmful to the businessinterests of a third party. [7] However, AHS concluded that the remaining information should be given to AUPE. AHS wrote to the contractors on March28, 2012, advising of its decision and giving the contractors until April 17 to provide a response.

AHS notified AUPE on April 30 that ithad given the contractors some time to consider its decision, but if no requests to the Commissioner had been made by May 18, 2012 theredacted returns would be provided to AUPE. [8] AHS sent the edited financial returns for Park Place Seniors Living Inc. (“Park Place”) to AUPE on May 18, unaware thatPark Place (which had missed AHS’s April 17 response deadline) had filed an application for review with the Commissioner, also onMay 18. [9] Of the 15 contractors for whom information was requested, only Shepherd’s Care Foundation (“Shepherd’s Care”) and ParkPlace Seniors Living objected to the disclosure of their edited returns by AHS, and they sought reviews of AHS’s decision by theCommissioner. [10] Before the reviews by the Commissioner began, AHS revised its decision and concluded that the nursing home operatorswere public bodies under FOIPPA such that

section 16 did not apply to them. Instead, for the purposes of the request, AHS consideredsection 25 of FOIPPA. That

section relates to disclosure harmful to the economic and other interests of a public body. Applying thatsection, AHS (as a public body) concluded that the redactions were appropriate to protect its economic interests, as well as the economicinterests of the nursing homes in question. Applying

section 25, AHS determined that the edited financial information should beprovided to AUPE. [11] AUPE then sought review of that decision by the Commissioner. [12] Thus the Commissioner had three requests for review: Shepherd’s Care and Park Place’s objections to providing any of therequested information, and AUPE’s objection to the redactions made by AHS. [13] A FOIPPA Adjudicator conducted an inquiry into AHS’s decisions and determined that other nursing home operators mightbe affected by the inquiry. The Adjudicator invited several other contractors to participate in the inquiry.

Both Revera Inc. (“Revera”) andExtendicare Inc. (“Extendicare”) participated, and are Applicants in this proceeding. While Revera was represented by separate counselbefore the Adjudicator, it is now represented by Brownlee LLP, along with Park Place. [14] The Adjudicator essentially consolidated the three requests for review and the Order relates to all three applications. Theseproceedings also consolidate the separate applications for judicial review filed by Park Place/Revera, Shepherd’s Care and Extendicare.

[ 15 ] The Adjudicator concluded that AHS and the Applicants had failed to establish that interference to their negotiating positions with AUPE was reasonably likely to result from disclosure of the information in the audited returns under either

section 16 or

section 25, and ordered that the un-redacted returns be provided to AUPE. [ 16 ] The information in the returns ordered to be given to AUPE included:

a) The amount of operating payments from Capital Health (AHS);

b) The amount of resident fees paid;

c) Total program revenues;

d) The costs associated with providing nurses, nursing attendants and unit clerks with separate totals for salaries and employment benefit contributions;

e) The “net cost” figures;

f) Cost breakdowns for diagnostic/therapeutic services; and

g) The total number of hours and salaries for administration and support services. C. Arguments of Applicants [ 17 ] The Applicants argue that providing the information to AUPE will harm their competitive advantage in that important financial information can be taken from the returns and used to calculate costs and profitability. Competitors will gain an unfair advantage over the Applicants because of their knowledge of this information.

Further, AUPE will be able to use the information in the returns to their advantage in labour negotiations with the Applicants. [ 18 ] The Applicants note that these concerns were expressed in affidavits filed on behalf of the Applicants in the inquiry, and that the sworn statements as to harm were not contradicted by any evidence to the contrary. [ 19 ] Each Applicant has its own arguments relating to the errors they claim the Adjudicator made. a. Park Place and Revera [ 20 ] Park Place argued before the Adjudicator that it was a public body such that s 16 of FOIPPA did not apply.

Park Place focused on s 25 of FOIPPA . It notes that Revera took the opposite position: that it was not a public body and that s 16 applied. [ 21 ] On this application, Park Place and Revera argue that the relevant test for withholding disclosure under both sections 16 and 25 is the same: whether they have demonstrated that the harm test has been satisfied in relation to the records ordered to be produced. [ 22 ] These Applicants submit that the Adjudicator rendered an unreasonable decision by misapplying the harm test under both of these sections of FOIPPA by:

a) Misinterpreting or misapplying the harm test by declining to consider contextual or external factors relevant to the application of those sections;

b) Failing to consider relevant contextual matters regarding the records, the parties and their relationship in applying those sections; and

c) Misinterpreting of misapplying the harm test by taking a narrow

interpretation of what evidence is relevant to showing a reasonable expectation of harm. b. Shepherd’s Care [ 23 ] Shepherd’s Care argues that:

a) The records ordered to be disclosed are exempt from disclosure under sections 16 and 25 of FOIPPA ;

b) The records were provided in confidence to AHS and the Adjudicator failed to find that the “confidential communications” doctrine applied;

c) The Adjudicator erred in failing to find that Shepherd’s Care was an employer/party covered under PIPA , and the Adjudicator erred in failing to apply either s 16 or 25;

d) The Adjudicator failed to find that disclosure of the records was harmful to Shepherd’s Care under sections 16 or 25 ;

e) The Adjudicator failed to consider that the Kensington Village facility operated by Shepherd’s Care was not a nursing home but was rather an age-in-place facility, governed by the Personal Information Protection Act , SA 2003, c P-6.5 (“ PIPA ”) and not FOIPPA , and in doing so the Adjudicator failed to properly apply Shepherd’s Care’s evidence and give it appropriate weight; and

f) The Adjudicator set the standard too high for proving harm under sections 16 and 25 .

c. Extendicare [24] Extendicare argues that:

a) The Adjudicator failed to apply or properly apply the harms test under sections 16 and 25 of FOIPPA;

b) The Adjudicator unreasonably failed to consider relevant evidence; and

c) The Adjudicator failed to consider essential issues. D. Responses a. AUPE [25] AUPE, as Respondent, argues that the decision of the Adjudicator was reasonable, and that there is justification, transparencyand intelligibility within the decision-making process and that the decision “falls within a range of possible, acceptable outcomes whichare defensible in respect of the facts and law.” [26] AUPE submits that the criteria required to permit a public body to deny access to information was not met and that theAdjudicator’s conclusion on this issue was reasonable. b.

Office of the Privacy Commissioner [27] The Privacy Commissioner’s Office made submissions with respect to the standard of review applicable to this application. E. Case law [28] The parties submitted a large number of cases with respect to their arguments. a.

Park Place/Revera 1) Excerpts from Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25; 2) Dunsmuir v New Brunswick, 2008 SCC 9, 291 DLR (4th) 577; 3) Bonsma v Alberta (Information and Privacy Commissioner), 2010 ABQB 209, 500 AR 201; 4) Alberta Teachers’ Association v Buffalo Trail Public Schools Regional Division No 28, 2013 ABQB 283, 562 AR 142; 5) Order 98-005: Alberta Transportation and Utilities (May 15, 1998); 6) Ontario (Ministry of Community Safety And Correctional Services) v Ontario (Information and Privacy Commissioner), 2014SCC 31, [2014] 1 SCR 674; 7) Order F2009-028: Alberta Health Services (March 31, 2010); 8) Order 96-016: Alberta Environmental Protection (December 2, 1996); 9) Canada (Information Commissioner) v Canada (Minister of External Affairs), (FC), [1990] 3 FCR 665, 72DLR (4th) 113 (FCTD); 10) Canada (Information Commissioner) v Canada (Prime Minister), (FC), [1993] 1 FC 427, 57 FTR 180 (FCTD); 11) Order F2008-018: Edmonton Police Services (January 12, 2009); 12) Order 2006-023: University of Alberta and University of Calgary (January 17, 2008); 13) Order F2010-037: Buffalo Trail Public Schools Regional Division No. 28 (August 30, 2011); 14) Qualicare Health Services Corporation v Alberta (Office of the Information and Privacy Commissioner), 2006 ABQB 515, 407AR 63; and 15) Firestone Energy Corporation v Construction Workers Union, Local No 63, (AB LRB). b.

Shepherd’s Care

1) Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25, Sections 1, 3, 4, 6, 12, 16, 25, 30, 71, 72, 74; 2) Personal Information Protection Act, S.A. 2003, c. P-6.5, Sections 1, 3, 4; 3) Imperial Oil Limited v. Alberta (Information and Privacy Commissioner), 2014 ABCA 231; 4) ABC Benefits Corporation v.

Alberta (Information and Privacy Commissioner), 2015 ABQB 662; 5) Office of the Information and Privacy Commissioner (Alberta Human Resources And Employment), Order F2001-002; 6) Office of the Information and Privacy Commissioner (Alberta Restructuring And Government Efficiency), Order F2003-004; 7) Office of the Information and Privacy Commissioner (Alberta Health Services), Order F2009-028; 8) Office of the Information and Privacy Commissioner (Agricultural Financial Services), Order F2010-030; 9) UNA v. Shepherd’s Care Foundation [2003] Alta. L.R.B.R. LD-033; 10) UNA v.

Hardisty Care Centre Ltd., 2011 CarswellAlta 1353 (Lab. Rel. Bd.); 11) The Dictionary of Canadian Law, 4th ed; 12) Sack & Poskanzer, Labour Law Terms; 13) Gordon v. Canada (Attorney General), 2016 ONCA 625; 14) OSSTF v. Alma College, 1987 CarswellOnt 1376 (Ont. Lab. Rel. Bd.); 15) Slavutych v. Baker et al., (SCC); 16) R. v. Edwards, (SCC), [1996] 1 S.C.R. 128; 17) R. v.

Duarte, (SCC), [1990] 1 S.C.R. 30; 18) Information And Privacy Commissioner (Alberta Transportation And Utilities), Order 98-005; 19) Information And Privacy Commissioner (Alberta Health Services), Order F2009-028; 20) Information And Privacy Commissioner (Buffalo Trail Public Schools Regional Division No. 28), Order F2010-037; and 21) Firestone Energy Corporation v Construction Workers Union, Local No 63, (AB LRB). c. Extendicare 1) Dunsmuir v. New Brunswick, 2008 SCC 9 , [2008] 1 SCR 190, 2008 SCC; 2) Alberta (Information and Privacy Commissioner) v.

Alberta Teachers’ Association, 2011 SCC 61 , [2011] 3 SCR 654,2011 SCC61; 3) Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25; 4) Alberta Transportation And Utilities, Order 98-005; 5) Alberta Health Services, Order F2009-028; 6) Order F2010-037, ; 7) Alberta Teachers’ Association v. Buffalo Trail Public Schools Regional Division No. 28, 2013 ABQB 283; 8) Labour Relations Code, RSA 2000, c. L-1, s. 1(1)(i); 9) Re Corporation of the City of Calgary, (ABLRB); 10) Ontario Public Service Employees’ Union v. St. Clair College of Applied Arts and Technology, (ON LRB); 11) Petrov v.

British Columbia (Superintendent of Motor Vehicles), 2015 BCCA 486; 12) Sharif v. Alberta (Appeals Commission for Alberta Workers’ Compensation), 2011 ABCA 75; 13) Province of New Brunswick v. LeBlanc, 2013 NBCA 9; 14) Nievas v. Canada (Minister of Citizenship and Immigration), (FC); 15) Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 SCR 748, ;

16) The Winnipeg School Division No. 1 v. The Winnipeg Teachers’ Association of the Manitoba Teachers’ Society, 2007 MBQB23; and 17) Telus Communications Inc. v Telecommunications Workers Union, 2014 ABCA 199. d.

AUPE 1) Freedom of Information and Protection of Privacy Act, RSA 2000 c F-25 (excerpts); 2) Edmonton School District No 7 v Dorval, 2016 ABCA 8; 3) ABC Benefits Corporation v Alberta (Information and Privacy Commissioner), 2015 ABQB 662; 4) Qualicare Health Service Corporation v Alberta (Office of the Information and Privacy Commissioner), 2006 ABQB 515; 5) Jane Doe v Alberta (Deputy Minister of Executive Council), 2016 ABQB 135; 6) Order F2007-012, Re Edmonton Police Commission (October 12, 2007); 7) Agriculture Financial Services Corporation v Alberta (Information and Privacy Commissioner), 2012 ABQB 397; 8) Ontario (Public Safety and Security) v Criminal Lawyers’ Association, 2010 SCC 23; 9) Order F2013-47, Re Alberta (Health), [2013] AIPCD No 53; 10) Canada (Information Commissioner) v Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8; 11) Accenture Inc. v Ontario (Information and Privacy Commissioner), 2016 ONSC 1616; 12) Order F2010-037, Re Buffalo Trail Public Schools, [2011] AIPCD No 49; and 13) Alberta Teachers’ Association v Buffalo Trail Public Schools Regional Division No. 28, 2013 ABQB 283. e.

OIPC 1) Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), 2014 SCC 31; 2) Alberta Rules of Court, Rules 3.15 - 3.24; 3) Leon ‘s Furniture Ltd. v. Alberta (Information and Privacy Commissioner), 2011 ABCA 94; 4) Alberta Teachers’ Association v. Alberta (Information and Privacy Commissioner), 2011 ABQB 19; 5) Edmonton Police Service v. Alberta (Information and Privacy Commissioner), 2012 ABQB 595; 6) Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44; 7) Ontario (Children’s Lawyer) v.

Ontario (Information and Privacy Commissioner), (ON CA), [2005] O.J.No. 1426 (C.A.); 8) C.A.I.M.A.W. Local 14 v. Paccar of Canada Ltd., (SCC), [1989] 2 S.C.R. 983; 9) FOIPPA ss. 2, 16, 25,45(l), 45(2), 53(1), 63(l), 65, 73; 10) Communications Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp and Paper, 2013 SCC 34; 11) Dunsmuir v. New Brunswick, 2008 SCC 9; 12) Construction Labour Relations v. Driver Iron Inc., 2012 SCC 65; 13) Smith v. Alliance Pipeline Ltd., 2011 SCC 7; 14) Law Society of New Brunswick v. Ryan, 2003 SCC 20; 15) Canada (Citizenship and Immigration) v.

Khosa, 2009 SCC 12; 16) Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62; 17) Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53; 18) Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59; 19) Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61;

20) Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd. , 2016 SCC 47 ; 21) McLean v. British Columbia (Securities Commission) , 2013 SCC 67 ; 22) Merck Frost Canada Ltd. v. Canada (Health) , 2012 SCC 3 ; and 23) Brewer v. Fraser Milner Casgrain LLP , 2008 ABCA 160 F. Statutory provisions [ 29 ] The key provisions from FOIPPA are sections 16 and 25 . They provide: Disclosure harmful to business interests of a third party 16(1) The head of a public body must refuse to disclose to an applicant information (

a) that would reveal (

i) trade secrets of a third party, or (ii) commercial, financial, labour relations, scientific or technical information of a third party, (

b) that is supplied, explicitly or implicitly, in confidence, and (

c) the disclosure of which could reasonably be expected to (

i) harm significantly the competitive position or interfere significantly with the negotiating position of the third party, (ii) result in similar information no longer being supplied to the public body when it is in the public interest that similar information continue to be supplied, (iii) result in undue financial loss or gain to any person or organization, or (iv) reveal information supplied to, or the report of, an arbitrator, mediator, labour relations officer or other person or body appointed to resolve or inquire into a labour relations dispute.

(2) The head of a public body must refuse to disclose to an applicant information about a third party that was collected on a tax return or collected for the purpose of determining tax liability or collecting a tax. (3) Subsections (1) and (2) do not apply if (

a) the third party consents to the disclosure, (

b) an enactment of Alberta or Canada authorizes or requires the information to be disclosed, (

c) the information relates to a non arm’s length transaction between a public body and another party, or (

d) the information is in a record that is in the custody or under the control of the Provincial Archives of Alberta or the archives of a public body and has been in existence for 50 years or more. Disclosure harmful to economic and other interests of a public body 25(1) The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to harm the economic interest of a public body or the Government of Alberta or the ability of the Government to manage the economy, including the following information: (

a) trade secrets of a public body or the Government of Alberta; (

b) financial, commercial, scientific, technical or other information in which a public body or the Government of Alberta has a proprietary interest or a right of use and that has, or is reasonably likely to have, monetary value; (

c) information the disclosure of which could reasonably be expected to (

i) result in financial loss to, (ii) prejudice the competitive position of, or (iii) interfere with contractual or other negotiations of, the Government of Alberta or a public body; (

d) information obtained through research by an employee of a public body, the disclosure of which could reasonably be expected to deprive the employee or the public body of priority of publication.

G. Order F2014-35 (Adjudicator’s Decision) [30] The Adjudicator identified the issues to be decided by her as follows:

a) Does

section 16 of FOIPPA apply to the information in the records?

b) Did AHS properly apply

section 25 of FOIPPA to the information in the records?

c) Is the information in the records personal information under

section 17 of FOIPPA? a. Application of

section 16 [31] In answer to the

section 16 issue, the Adjudicator found at paragraph 15 of the Order that “their (Shepherd’s Care, Touchmarkand Revera) arguments and evidence fail to establish that the requirements of section 16(1)(

c) are met. It is therefore unnecessary todetermine whether these entities are third parties within the terms of the FOIP Act or public bodies.” [32] The Adjudicator applied an earlier Adjudicator’s Order, Order F2005-011, (AB OIPC), which set out anapproach to a

section 16 analysis: [para 16] In Order F2005-011, the Commissioner adopted the following approach to

section 16 analysis: Order F2004-013 held that to qualify for the exception in section 16(1), a record must satisfy the following three-part test:

Part 1: Would disclosure of the information reveal trade secrets of a third party or commercial, financial, labour relations, scientific ortechnical information of a third party?

Part 2: Was the information supplied, explicitly or implicitly, in confidence?

Part 3: Could disclosure of the information reasonably be expected to bring about one of the outcomes set out in section 16(1)(c)? [33] I turn now to the question of whether the information Shepherd’s Care, Revera, and Touchmark seek to have severed undersection 16 meets the requirements of sections 16(1)(a), (b), and (

c) such that section 16(1) requires the information to be withheld. [34] The Adjudicator found that the information fell within the terms of section 16(1)(a), but found that the conditions of section16(1)(

c) had not been met, so it was unnecessary to consider s 16(1)(b). The Adjudicator noted, however, “if I am wrong in that finding,it would be necessary to decide whether the information Shepherd’s Care, Touchmark and Revera seek to have withheld could be said tohave been supplied in confidence.” [35] The Adjudicator then considered whether any of the harms described in section 16(1)(

c) had been met. The Respondentsargued that disclosing the information to AUPE would harm their negotiating positions with AUPE, satisfying s 16(1)(c)(i). [36] The Adjudicator relied on Canada (Information Commissioner) v Canada (Prime Minister), (FC),[1992] FCJ No 1054, relating to the evidence to be introduced to establish harm from disclosure: [para 24] In Canada (Prime Minister) Canada (Information Commissioner) v. Canada (Prime Minister), (FC), [1992]F.C.J.

No. 1054; Rothstein J., as he then was, made the following observations in relation to the evidence a party must introduce in orderto establish that harm will result from disclosure of information. He said: While no general rules as to the sufficiency of evidence in a

section 14 case can be laid down, what the Court is looking for is support forthe honestly held but perhaps subjective opinions of the Government witnesses based on general references to the record. Descriptions ofpossible harm, even in substantial detail, are insufficient in themselves. At the least, there must be a clear and direct linkage between thedisclosure of specific information and the harm alleged. The Court must be given an explanation of how or why the harm alleged wouldresult from disclosure of specific information.

If it is self-evident as to how and why harm would result from disclosure, littleexplanation need be given. Where inferences must be drawn, or it is not clear, more explanation would be required. The more specificand substantiated the evidence, the stronger the case for confidentiality.

The more general the evidence, the more difficult it would befor a court to be satisfied as to the linkage between disclosure of particular documents and the harm alleged. [my emphasis] [37] The Adjudicator also relied on Qualicare Health Service Corporation v Alberta (Office of the Information and PrivacyCommissioner), 2006 ABQB 515: [para 26] In Qualicare Health Service Corporation v.

Alberta (Office of the Information and Privacy Commissioner), 2006 ABQB 515, the Court upheld a decision of the Commissioner requiring evidence to support the contention that there was risk of harm ifinformation was disclosed. [38] The Commissioner’s decision did not prospectively require evidence of actual harm; the Commissioner required someevidence to support the contention that there was a risk of harm. At no point in his reasons does he suggest that evidence of actual harmis necessary. [39] The evidentiary standard that the Commissioner applied was appropriate.

The legislation requires that there be a “reasonableexpectation of harm.” Bare arguments or submissions cannot establish a “reasonable expectation of harm.” When interpreting similarlegislation, courts in Ontario and Nova Scotia have held that there is an evidentiary burden on the party opposing disclosure based onexpectation of harm: Chesal v Nova Scotia (Attorney General) 43, at para 56; Ontario (Workers’ Compensation Board) v Ontario

(Assistant Information & Privacy Commissioner) 44 at para 26. [40] Additionally, the Adjudicator referenced Ontario (Community Safety and Correctional Services) v Ontario (Informationand Privacy Commissioner), 2014 SCC 31. There, the Supreme Court stated: [para 27] In a recent decision, Ontario (Community Safety and Correctional Services) v.

Ontario (Information and PrivacyCommissioner), 2014 SCC 31 , the Supreme Court of Canada confirmed that when access and privacy statutes refer toreasonable expectations of harm, that a party must demonstrate that disclosure will result in a risk of harm that is beyond the merelypossible or speculative. The Court stated: It is important to bear in mind that these phrases are simply attempts to explain or elaborate on identical statutory language.

Theprovincial appellate courts that have not adopted the “reasonable expectation of probable harm” formulation were concerned that itsuggested that the harm needed to be probable: see, e.g., Worker Advisor, at paras. 24-25; Chesal v. Nova Scotia (Attorney General),2003 NSCA 124 , 219 N.S.R. (2d) 139, at para. 37. As this Court affirmed in Merck Frosst, the word “probable” in thisformulation must be understood in the context of the rest of the phrase: there need be only a “reasonable expectation” of probable harm.

The “reasonable expectation of probable harm” formulation simply “captures the need to demonstrate that disclosure will result in a riskof harm that is well beyond the merely possible or speculative, but also that it need not be proved on the balance of probabilities thatdisclosure will in fact result in such harm”: para. 206. Understood in this way, there is no practical difference in the standard described by the two reformulations of or elaborations on thestatutory test.

Given that the statutory tests are expressed in identical language in provincial and federal access to information statutes, itis preferable to have only one further elaboration of that language; Merck Frosst, at para. 195: I am not persuaded that we should change the way this test has been expressed by the Federal Courts for such an extended period oftime. Such a change would also affect other provisions because similar language to that in s 20(1)(

c) is employed in several otherexemptions under the Act, including those relating to federal-provincial affairs (s 14), international affairs and defence (s 15), lawenforcement and investigations (s 16), safety of individuals (s 17), and economic interests of Canada (s 18). In addition, as the respondentpoints out, the “reasonable expectation of probable harm” test has been followed with respect to a number of similarly worded provincialaccess to information statutes. Accordingly, the legislative

interpretation of this expression is of importance both to the application ofmany exemptions in the federal Act and to similarly worded provisions in various provincial statutes. [Emphasis added in original.] This Court in Merck Frosst adopted the “reasonable expectation of probable harm” formulation, and it should be used wherever the“could reasonably be expected to” language is used in access to information statutes. [my emphasis] As the Court in Merck Frosstemphasized, the statute tries to mark out a middle ground between that which is probable and that which is merely possible.

Aninstitution must provide evidence “well beyond” or “considerably above” a mere possibility of harm in order to reach that middleground: paras 197 and 199.

This inquiry, of course, is contextual and how much evidence and the quality of evidence needed to meet thisstandard will ultimately depend on the nature of the issue and “inherent probabilities or improbabilities or the seriousness of theallegations or consequences”: Merck Frosst, at para 94, citing F.H. v McDougall, 2008 SCC 53 , [2008] 3 S.C.R. 41, at para.40. [41] The Adjudicator held at paragraph 30: [para 30] Shepherd’s Care, Touchmark and Revera did not explain how disclosure of specific information in their audited financialreturns could be expected to create significant interference with their respective negotiating positions in collective bargaining.

Moreover,they did not explain how their negotiating positions would be interfered with, or point to the information in the records that could beexpected to result in that harm. [42] The Adjudicator noted at paragraph 31 that she had been provided with “essentially bare statements,” but “there was noargument or evidence to establish the nature of the harm, its relation to the information in the records, or the likelihood that such a harmwould result from disclosure of the specific information.” The records were left to “speak for themselves.” [43] She concluded at paragraph 33: [para 33] While it is conceivable that information could exist that is beneficial to a union and harmful to management, it is not the casethat all information useful to a union would be correspondingly harmful to management.

It is conceivable that information could behelpful to a union’s case, but not harmful to management’s case. To establish that information will significantly interfere withnegotiating position, it is necessary to point to the information in the records that will have this effect, and explain why disclosure of thisinformation this outcome could be expected. However, there is no evidence before me regarding the subject matter of prospectivenegotiations that would enable me to infer the use that could be made of the information, such that I could even find that the informationwould be useful to AUPE in negotiations.

Moreover, there is insufficient evidence or explanation regarding the information the thirdparties anticipate could result in significant interference to their negotiating positions if disclosed to allow me to draw an inferenceregarding the likelihood of such harm arising. [44] This conclusion is challenged by the Applicants as being unreasonable, imposing too high a burden on the Applicants, and asignoring or not giving appropriate weight to the Applicants’ evidence. [45] The Adjudicator reiterated at paragraph 36 that “there is no obvious connection between information regarding the 2010/2011fiscal period and harm to future negotiations and none has been stated to me.” [46] The Adjudicator recognized that both Shepherd’s Care and Revera had provided affidavit evidence, but noted at paragraph 38that Revera’s evidence did not correlate the specific information in the audited returns to the potential for significant interference tonegotiating positions.

She held at paragraph 40 that she was unable to conclude that the information provided by Shepherd’s Care couldbe expected to have a negative impact on Shepherd’s Care’s management or contractual rights in labour relations, or the negotiation ofcollective agreements.

[47] As for significant harm to the Applicants’ competitive positions, the Adjudicator reviewed the affidavit evidence from Reveraand Shepherd’s Care, and concluded at paragraph 45 that neither party had explained how disclosure might be used by a competitor toharm their competitive positions. She determined that she was essentially being asked to speculate on the harm, but concluded that shewas “unable to do so, as the records and the submissions of the parties do not lead me to conclude that there is any likelihood that (their)competitive positions could be harmed by disclosure.” [48] The Adjudicator considered whether PIPA should apply rather than FOIPPA. She held that

section 4 of FOIPPA made itclear that FOIPPA applied to the request because the records sought were held by a public body (in this case AHS). b. Application of s 25 by AHS [49] In its submissions, AHS argued that it faced two harmful outcomes as a result of disclosure:

a) That nursing home operators would cease to enter into further contracts with AHS; and

b) AHS’s competitive position would be harmed because disclosure would show the terms it had accepted in previous negotiations. [50] The Adjudicator noted that in Order 96-016, (AB OIPC), former Commissioner Clark rejected the viewthat agreements to keep information confidential bring information within the scope of

section 25. Commissioner Clark held in that case: [17] In the present case, the public body claimed an exception for the entire record. I carefully reviewed the public body’s evidence todetermine if it examined the information contained in the record. There is no evidence that the public body examined the information todetermine whether that particular information could reasonably be expected to cause the alleged harm, if disclosed. Instead, the publicbody appears to have focused on protecting the contractual relationship which produced that information. To the public body’s way ofthinking, if (

i) there’s a contractual relationship in place, (ii) the relationship produces information that could be disclosed under the Act,and (iii) the information is subject to a confidentiality clause, then “harm at large” or “indirect harm” to this or any other contractualrelationship is sufficient for the purposes proving harm under section 24(1) (now

section 25). [18] The alleged harm to AEC’s and ARC’s potential contractual relationships does not result from disclosing the specific informationin the record. There is no clear and direct linkage between allegations of harm and disclosure of these 845 specific pages. It is the fact ofdisclosure in general which is said to cause the harm. The consideration in applying

section [25(1)] must be whether it’s reasonable toexpect the alleged harm from the disclosure of the specific information. Since the public body did not examine the information, it isprecluded from claiming that there is a reasonable expectation of harm from disclosure. [19] Furthermore, the main object and purpose of the Act is access, subject to limited and specific exceptions. The public body’s focuson protecting contractual relationships is not one of the objects or purposes of the Act. If the legislature had intended to protect thoserelationships, it would have said so. Nowhere in

section [25(1)], or anywhere else in the Act, can I find that intent. As stated by thecourt in Air Atonabee Ltd. v. Canada (Minister of Transport), [1989] F.C.J. No. 453 (Fed. T.D.), “...if the relationship between theparties...is to be treated as one of confidence and the records arising in it are to be wholly exempt from disclosure, that decision rests withParliament or with the executive under the Act...” I adopt that reasoning for the purposes of interpreting

section [25(1)] to exclude ageneral protection for contractual relationships, unrelated to the harm resulting from the release of the specific information in question. [51] The Adjudicator held at paragraph 61: [para 61] As discussed above, and as previous orders of this office have stated, before

section 25 can be said to apply, it must beestablished that a harm recognized by

section 25 would result from disclosure of the information in question, and not merely from thecontravention of an agreement to keep information confidential. [52] The Adjudicator rejected AHS’s submissions noting that it did not have the right to seek review of its decision, and itsarguments were not consistent with the arguments made by the Applicants Revera and Extendicare. [53] Dealing with Revera’s and Extendicare’s arguments that

section 25 should be applied to the information in the auditedreturns, the Adjudicator relied on Alberta Teachers’ Association v Buffalo Trail Public Schools Regional Division No 28, 2013 ABQB283. In that case, the Court overturned the Adjudicator’s decision and ordered disclosure of many of the records in question.

The Courtconcluded that the Adjudicator’s decision was unreasonable “where the information in the record did not support finding that economicharm could result to the public body by its disclosure.” [54] The Adjudicator noted that Park Place’s primary concern to disclosure was that its audited returns may be open tomisinterpretation and possible manipulation to its detriment. The Adjudicator stated at paragraph 80 “(t)hat a party may misinterpret ormanipulate information is not a harm recognized by

section 25.” [55] She held at paragraphs 81 and 82: [para 81]

Section 25 applies only to information the disclosure of which could result in one of the harms recognized by this provision,regardless of the intentions or perceptions of the applicant.

It is for this reason that I consider the intentions or perceptions of anapplicant to be external factors. [para 82] To illustrate the point, information containing derogatory opinions attributed to the public body about a party with whom apublic body is negotiating could reasonably be expected to result in interference with negotiations with that party within the terms ofsection 25; however, an opinion that is not derogatory, but for the misrepresentation or manipulation of the opinion, may not fall withinthe terms of

section 25. [56] With respect to confidentiality, the Adjudicator noted that Extendicare had not provided a copy of the confidentiality clause it

argued was contained in its contract with AHS. The Adjudicator distinguished Imperial Oil Limited v Calgary (City), 2013 ABQB 393,limiting that decision to mediated settlement agreements. [57] The Adjudicator did not deal expressly with the written submissions of Shepherd’s Care and Revera concerningconfidentiality, but discussed confidentiality at paragraphs 58 and 59, referencing Order 96-016 in which former Commissioner Clark“rejected the view that agreements to keep information confidential bring information within the scope of

section 25.” [58] The Adjudicator held at paragraph 61: [para 61] As discussed above, and as previous orders of this office have stated, before

section 25 can be said to apply, it must beestablished that a harm recognized by

section 25 would result from disclosure of the information in question, and not merely from thecontravention of an agreement to keep information confidential. [59] Extendicare also argued that FOIPPA should not be used by parties involved in labour relations to obtain information for thepurposes of bargaining that could not be obtained through the bargaining process or under the Labour Relations Act. The Adjudicatorheld at paragraph 90: [para 90]

Section 6 of the FOIP Act creates a right of access to information in the custody or control of a public body, subject to limitedand specific exceptions. If an exception to disclosure to information does not apply, then a requestor is entitled to the information, evenif the requestor is a union, and even if the duty to take reasonable measures to enter a collective agreement does not require an employerto give the information to the union in negotiations. Moreover,

section 3 of the FOIP Act states that the FOIP Act is in addition to otherprocedures for access to information or records. Making a complaint under the Labour Relations Code is therefore only one way toobtain information; it is also possible to make an access request under the FOIP Act for the information if it is in the custody or controlof a public body. [60] The Adjudicator ultimately held at paragraph 93: [para 93] I am unable to find that disclosure of the information in the records could reasonably be expected to interfere with thenegotiations of a public body or the Government of Alberta.

I make this finding on the basis that any negotiations are taking place in thefuture, and the economic conditions and priorities in the negotiations are either unknown at this time, or have not been stated to me in theinquiry. The parties have not drawn a correlation between the information they seek to have withheld and a risk of interference tonegotiations.

While I have been told that AUPE has taken strike action previously, and that the information in the records may be usefulto AUPE in future collective bargaining, this evidence falls short of establishing that interference with Extendicare’s or Park Place’snegotiations could be reasonably be expected to result from disclosure of the audited returns at issue.

In any case, even if the subject andemphasis of future negotiations were known, the information at issue is for the 2010/2011 fiscal year, and it is unclear how it could havea bearing on negotiations in the future, particularly in the absence of explanation on this point from the parties seeking to withhold theinformation. [61] She concluded at paragraph 95: [para 95] Revera, Touchmark, and Shepherd’s Care focused their arguments on the application of

section 16 to the information. Allthree however, raised the application of

section 25 as an alternative argument and argued that the information in their audited returnscould be withheld under this provision. For the same reason that I found their arguments failed under

section 16, I find that they failunder

section 25: the evidence and arguments of these parties does not establish that there is a reasonable expectation that theirnegotiations would be interfered with if the information in the records at issue is disclosed. c. Personal Information [62] The Adjudicator concluded at paragraph 99 that she was “unable to identify personal information in the records that wouldrequire AHS to withhold it.” From her review of the information, she stated “one cannot determine a specific salary amount or salaryrange and associate it with a specific individual from the information in the records.” She thus concluded that

section 17 of FOIPPA didnot apply. H. Standard of Review [63] There is no controversy over the standard of review to be applied to Adjudicators’ decision under FOIPPA. The basic standardof review is reasonableness.

Correctness applies in limited circumstances, namely constitutional questions, questions of general law thatare both of central importance to the legal system as a whole and outside the tribunal’s specialized area of expertise, jurisdiction issuesbetween competing tribunals and “true questions of jurisdiction or vires”: Imperial Oil Ltd. v Alberta (Information and PrivacyCommissioner), 2014 ABCA 231 at paragraph 33, following Alberta (Information and Privacy Commissioner) v Alberta Teachers’Association, 2011 SCC 61. [64] The reasonableness standard is well defined in Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, referenced inImperial Oil at paragraph 34: [34] The scope of review for reasonableness was summarized in Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para. 59, [2009] 1 SCR 339.

Where the reasonableness standard applies, it requires deference. Reviewing courts cannot substitute theirown appreciation of the appropriate solution, but must rather determine if the outcome falls within a range of possible, acceptableoutcomes which are defensible in respect of the facts and law. There might be more than one reasonable outcome. However, as long asthe process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to areviewing court to substitute its own view of a preferable outcome.

[ 65 ] Here, Park Place agrees that its grounds for review attract the reasonableness standard. Shepherd’s Care does not identify any of the exceptions to the reasonableness standard in its grounds for review. Extendicare argues that the correctness standard applies to its argument that the Adjudicator ignored uncontested evidence.

It argues that “the failure to (address) the arguments and submissions of parties is a question of law which is of central importance to the legal system and outside of the tribunal’s special expertise such that a correctness standard should apply.” [ 66 ] Extendicare argues that the Adjudicator erred in jurisdiction by giving no consideration to the argument that disclosure of the records would significantly harm or prejudice the competitive position of the applicants. [ 67 ] Winnipeg School Division No 1 v The Winnipeg Teachers’ Association of the Manitoba Teachers’ Society , 2007 MBQB 23 , is cited relating to the jurisdiction argument.

That case pre-dates Dunsmuir and is no longer of any assistance on this issue. Failure to deal with arguments or evidence is now subsumed within the reasonableness standard and “justification, transparency and intelligibility.” [ 68 ] Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association is cited for its arguments concerning legal issues of central importance.

I do not see that a failure to deal with an issue or argument, or ignoring evidence, is an issue of true jurisdiction, or is a legal issue that is of central importance to the legal system as a whole. [ 69 ] All tribunals accept and consider evidence and submissions. That is part of their function. A failing in this area, as with other areas within the routine functioning of a tribunal, should be reviewed on the basis of reasonableness, not correctness. [ 70 ] As a result, I see no issues here that should be decided on the basis of correctness.

The reasonableness standard applies to all of the issues and arguments. I. Park Place/Revera – Analysis of Arguments [ 71 ] Park Place/Revera focus on the “harm test” applicable to both sections 16 and 25, and submit that from their point of view, it does not matter which

section is applied to either Park Place or Revera. They argue that the Adjudicator referenced the correct test, but adopted an “unreasonable

interpretation and application as to the information subject to the disclosure request and the harm test.” [ 72 ] Park Place/Revera argue that “AUPE’s past conduct” should be considered as a factor in determining its probable use of the financial information. Evidence before the Adjudicator included press coverage of AUPE’s strike action against various nursing home operators. [ 73 ] They further submit that the Adjudicator limited the harms test to the “face of the Records” and thus failed to consider or appreciate the context in which Park Place’s and Revera’s concerns arose. [ 74 ] They state their arguments as follows:

a) The Adjudicator erred in misinterpreting or misapplying the “harm test” by declining to consider contextual or external factors relevant to the application of Sections 16(1) and 25(1) of FOIPPA ;

b) The Adjudicator erred in failing to consider relevant contextual matters regarding the Records, the Parties and their relationship in applying Sections 16(1) and 25(1) of FOIPPA ; and

c) The Adjudicator erred in misinterpreting or misapplying the “harm test” and by taking a narrow

interpretation of what evidence is relevant to showing a reasonable expectation of harm. a. The Adjudicator erred in misinterpreting or misapplying the “harm test” by declining to consider contextual or external factors relevant to the application of Sections 16(1) and 25(1) of FOIPPA [ 75 ] Park Place/Revera say that the Adjudicator erred when she stated at paragraph 79 that “the harms contemplated by

section 25 must result from the information at issue, and not external factors.” [ 76 ] They argue that the Adjudicator erred by relying on Order 96-016 , where then Commissioner Clark stated at paragraphs 12 and 13: [12] The public body claims that section 24(1) should be interpreted so that the harm to a public body does not have to result directly from disclosing the specific information, but can be “harm at large” or “indirect harm” (my

interpretation of the public body’s claim). The essence of the public body’s argument is this: The information in the record was produced under a contract between a division of a public body and an organization independent of government. There was a confidentiality clause in that contract, which restricts publication of the information. Releasing this information under the Act, contrary to the confidentiality clause, will affect AEC’s and, consequently, ARC’s contracts with this and other organizations, thereby causing harm to both AEC and ARC.

Harm will result from cancelled contracts, and from other organizations bypassing AEC and ARC, knowing they are subject to the Act. That harm is quantifiable. [13] However reasonable the public body’s argument sounds, I do not think that section 24(1) can or should be interpreted as the public body claims. Section 24(1) focuses on the harm resulting from the disclosure of that specific information (my emphasis). The wording of section 24(1) implies that it is the specific information itself that must be capable of causing the harm, if that information is disclosed.

When I look at the kinds of information listed in section 24(1)(a)-(d), two things are clear to me: (

i) the legislature had very specific kinds of information in mind when it was contemplating what information had the potential to cause harm if disclosed; and (ii) there

must be a direct link between disclosure of that specific information and the harm resulting from disclosure; in other words, there mustbe something in the information itself capable of causing the harm. [77] The Adjudicator was discussing Alberta Teachers’ Association v Buffalo Trail Public Schools Regional Division No 28,2013 ABQB 283, where the reviewing judge overturned the Adjudicator’s decision and found that there was insufficient information onthe record to support the Adjudicator’s finding that economic harm could result from disclosure relating to a large number of the recordsin question. [78] In Alberta Teachers’ Association v Buffalo Trail, Hughes J stated at paragraphs 55-57: [55] The Respondent submits para. 8 of Ms.

Melin’s affidavit is some evidence upon which the Adjudicator could base his decision. [56] Paras. 8 and 9 of Ms. Melin’s affidavit are conclusory statements based upon, I assume, her review of the documents in question. Itis the contents of the documents themselves in relation to the other evidence and the applicable test that inform any application for non-disclosure.

For example, in The Law of Evidence in Canada (3rd ed.) Bryant, Lederman and Fuerst, the authors state in relation to theissue of privilege at para. 14.36: In the determination of whether a privilege should be accorded to a particular communication or class of communications, and, if so,what conditions should apply, the court must consider the circumstances of the privilege claimed, the communications or documents,and the case. [57] I find the Adjudicator’s decision with respect to a number of the documents was reasonable taking into account the contents of eachdocument, the other evidence and the applicable legal test... [79] The Adjudicator in that case had concluded (quoted at paragraph 81) that the information (financial information such asinvoices and expense claims) could give the Alberta Teachers’ Association a “better understanding of (the third party’

s) operations, andthereby gain an advantage over the (third party’

s) and the Public Body in the course of future collective bargaining.” [80] Neither the Adjudicator’s decision nor the decision on judicial review suggest that the Adjudicator there did not or should nothave relied on all of the information put before him. [81] To determine if the Adjudicator in this case improperly restricted the information on which she could base her decision, thefull context of her finding is important. The Adjudicator stated at paragraph 78-81: [para 78] In Alberta Teachers' Association v.

Buffalo Trail Public Schools Regional Division No. 28, 2013 ABQB 283 theAlberta Court of Queen’s Bench overturned the decision of the Adjudicator in Order F2010-037 and ordered the disclosure of many ofthe records the Adjudicator had found to be subject to

section 25. The Court concluded that the Adjudicator’s decision was unreasonablewhere the information in the record did not support finding that economic harm could result to the public body by its disclosure. [para 79] Order F2010-037 is ambiguous as it is not entirely clear whether the Adjudicator meant that the past conduct of a party couldground the application of

section 25, or whether he meant that the contents of the records in that case could be said to ground theapplication of

section 25. Regardless, in my view, it is the nature of the information in the records that is determinative as to whethersection 25 applies, and not extraneous considerations, such as the past conduct of an applicant. As discussed by former CommissionerClark in Order 96-016, cited above, the harms contemplated by

section 25 must result from the information at issue, and not externalfactors. [para 80] Park Place’s primary concern and objection to disclosure is that its audited financial returns may be open to misinterpretationand possible manipulation to its detriment if it does not provide clarification of the figures in the audited financial returns. It also pointedto some information that it considered to be open to manipulation or misinterpretation. That a party may misinterpret or manipulateinformation is not a harm recognized by

section 25. If a party assigns meaning to information that is not supported by the information, orpresents information to the public inaccurately, then any resulting harm or interference is not derived from the nature of the information,but the actions of the party reading and interpreting the information. [para 81]

Section 25 applies only to information the disclosure of which could result in one of the harms recognized by this provision,regardless of the intentions or perceptions of the applicant. It is for this reason that I consider the intentions or perceptions of anapplicant to be external factors. [82] Order 96-016 must also be read in the context of the facts of the application. There, one of the arguments was that thedisclosure of the information sought would harm the public body because of the existence of a confidentiality clause in the agreementbetween the public body.

The main concern expressed by the public body was that disclosure in the face of a confidentiality agreementwould harm its contractual relationships with its contractors. He found no economic harm from the disclosure of the information itself. [83] The Adjudicator’s reliance on Order 96-016 did not mean that the Adjudicator was not alive to the context of AUPE’s requestfor information, or Park Place’s concerns. Its concerns related to the potential use or misuse of the requested information in collectivebargaining with AUPE. The Adjudicator did not refuse or decline to look at the context of the request.

Indeed, the Adjudicatorspecifically dealt with Park Place’s concerns about the potential for misuse of the information at paragraph 84: [para 84] Any harm to their negotiations with AUPE that Extendicare and Park Place have argued will result from disclosure of theaudited returns requires AUPE to manipulate or misrepresent the information.

However, I am unable to find on the evidence before methat there is any information relevant to Extendicare’s or Park Place’s future negotiations that is of such a kind that it would interfere withthem if it is interpreted accurately. [84] This clearly demonstrates that the Adjudicator looked at all of the evidence before her, which included affidavit evidence onbehalf of Revera, Extendicare, and Shepherd’s Care. Those affidavits attempted to put the information in the records into the collective

bargaining context. [85] I do not see that the Adjudicator took the decision in Order 96-016 too far, or that she refused to consider the evidence beyondthe records themselves to determine whether economic harm had been established to the necessary level to prevent disclosure. [86] Here, the Adjudicator did what the Adjudicator in Alberta Teachers’ Association v Buffalo Trails did: look at all theinformation presented and make a determination if the information led to the conclusion that economic harm could reasonably beexpected to result from disclosure.

The Adjudicator’s decision there was overturned not because he had applied the wrong test or failedto consider information, but rather because the reviewing judge concluded that the evidence before the Adjudicator was insufficient toestablish the degree of risk of harm necessary relating to a large number of the records, and was thus unreasonable. [87] Park Place/Revera argue that the Adjudicator failed to follow the guidelines from Canada (Information and PrivacyCommissioner) v Canada (Prime Minister), [1993] FC 427, in assessing whether there was a “reasonable expectation of probableharm.” They note that at paragraph 34 of that decision, the Federal Court stated “use of the information is to be assumed in assessingwhether its disclosure would give rise to a reasonable expectation of public harm.” [88] They note that the Adjudicator in this case followed those guidelines in Order F2008-018, (AB OIPC),and they argue that in this case, she “dismisses these guidelines...and finds that the potential use of the information is not relevant.” Theyalso argue that “it is the use of the information if disclosed that is the basis of the harm in Order F2006-023 and is not the informationitself.” [89] As for the alleged inconsistency between the decision in this case and the Adjudicator’s earlier decision in Order F2008-018,Park Place/Revera cite Firestone Energy Corporation v Construction Workers Union, Local No 63, (AB LRB) onthe point of following earlier board decisions.

In that case, the Labour Relations Board held at paragraphs 39 and 40: [39] It is not a matter of determining whether “consistency” is to be preferred over “adaptability” in the common law of labour relations;rather it is a matter of finding the appropriate balance between the two in determining the circumstances when the Board will decline tofollow a Board precedent because it considers the previous decision to be incorrect.

The Original Panel’s adoption of the new “strongreasons” test amounts to a slight adjustment in the desired balance between “consistency” and “adaptability.” [40] We find the Original Panel’s justification for the abandonment of the “manifestly wrong” test and the adoption of the new “strongreasons” test to be clear and compelling.

Furthermore, given that the Board is not bound by stare decisis to follow its previous decisions,it is not an error of law for the Original Panel to depart from the “manifestly wrong” line of cases where the Original Panel articulatescompelling reasons to do so. [90] There is no apparent inconsistency between the Adjudicator’s approach to the harms test in Order F2008-018, (AB OIPC) and Order F2014-35.

From my reading of Order F2008-018, the Adjudicator applied the same case law and came tothe same conclusion relating to the Applicants’ failure to explain how the requested information might be used, or what specificinformation might be harmful to their interests (at paragraphs 88-89). In any event, while consistency is generally desirable, these casestend to turn more on their facts than legal principles and Firestone Energy gives some guidance as to how adjudicators or panels mighttreat their earlier decisions, or decisions from other adjudicators or panels.

I see no reviewable error here. [91] It does not appear that the Adjudicator took inconsistent approaches regarding “potential” use. In Order F2008-018, theAdjudicator stated at paragraph 94: [para 94] As happened in Canada (Prime Minister), I have been presented with general arguments as to the harm that may result fromdisclosure, but without a description of the harm that would be probable as a result of the disclosure of each piece of information or thecorrelation between the harm and the disclosure of the information.

Further, the harm to a third party’s competitive position that couldreasonably result from disclosure under section 16(1)(c)(

i) must be significant. ACS has not provided any explanation as to howdisclosure of specific information would result in significant harm to Gatsometer’s or its own competitive position. From review of therecords at issue, I do not find that the significant harm to Gatsometer’s or ACS’s competitive position projected by ACS is self-evident. [92] That again appears consistent with the approach taken in this case. [93] Order F2006-023, (AB OIPC) concerned a disclosure request on the University of Alberta andUniversity of Calgary bookstores.

The information sought was determined by the Adjudicator to “allow (the applicant) to offer the samebooks to the same finite market of students.

This will give her a competitive advantage and give the Public Bodies a competitivedisadvantage.” [94] It seems to me that this decision is entirely consistent with the ruling in Order 96-016 and focuses on the nature of theinformation sought to be disclosed and not simply the likely use of that information by the party seeking the information. [95] I am not persuaded that the Adjudicator failed to consider and apply the commonly accepted tests from Canada (PrimeMinister) in this case. [96] This ground of appeal fails. b.

The Adjudicator erred in failing to consider relevant contextual matters regardingthe Records, the Parties and their relationship in applying Sections 16(1) and 25(1) ofFOIPPA [97] Park Place/Revera say that the Adjudicator’s decision at paragraphs 79 and 81 (referenced above) is to the effect that a party

opposing disclosure:

a) cannot refer to the past conduct of the applicant applying for access to the information, and

b) cannot refer to the intentions or perceptions of the applicant. [98] They argue that the Adjudicator “came to an unreasonable conclusion regarding the application of Order F2010-037, (AB OIPC) (the Adjudicator’s decision in Alberta Teachers’ Association v Buffalo Trail). [99] Park Place/Revera focuses on the failure of the Adjudicator to deal with the history of strikes against nursing homescommenced by AUPE, and the risk of future strikes.

They say that “if the Adjudicator considered the Records in the context of thesefacts the possibility that the Records could be used to the detriment of the applicants during future collective bargaining negotiations orfuture strikes (or threatened strikes) would have been apparent.” [100] It is obvious that Park Place/Revera are very keen on the Adjudicator’s decision in Alberta Teachers’ Association v BuffaloTrail, and they minimize the effect of the Court of Queen’s Bench decision overturning the decision and remitting the application to adifferent adjudicator. [101] Park Place/Revera submit that the Adjudicator here should have adopted the Alberta Teachers’ Association v Buffalo TrailAdjudicator’s decision relating to the finding of harm by disclosing financial information to a union. [102] I make two observations regarding this argument.

Firstly, fact findings in one case create no binding authority on those facts.Triers of fact consider the evidence before them, and not the fact findings in other cases (unless those fact findings have become sonotorious as to constitute facts of which judicial notice can be taken). [103] Secondly, decisions of one Privacy Commission adjudicator are not binding on other adjudicators, and certainly not the courts.That is clear from Altus Group Limited v Calgary (City), 2015 ABCA 86.

There, the Court of Appeal stated at paragraph 16: [16] Strictly speaking, an administrative tribunal is not bound by its previous decisions or the decisions of its predecessor: Irving Pulp &Paper Ltd v LEP, Local 30, 2013 SCC 34 , [2013] 2 SCR 458 at para 6; Halifax Employers Assn v InternationalLongshoremen's Assn, Local 269, 2004 NSCA 101 , 243 DLR (4th) 101 at para 82, leave to appeal to SCC refused, [2004] 334NR 197. Where numerous reasonable

interpretations exist, the administrative tribunal may change its consensus or policy with respect towhich one it will adopt. There is no rule of law that an administrative tribunal can never change its policies, nor change its

interpretationof a particular policy, nor change the way that the policy will be applied to particular fact situations: Thompson Brothers (Construction)Ltd v Alberta (Appeals Commission for Alberta Workers’ Compensation), 2012 ABCA 78 , [2012] AWLD 2212 at para 39. [104] While the SCC said in Communications Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp &Paper, Ltd.,2013 SCC 34, that courts should be slow to change consistent arbitral jurisprudence (at paragraph 16), a single previous decision that wasset aside on review does not constitute consistent arbitral jurisprudence. [105] Reference to previous board decisions may bear on the reasonableness of the decision in question, but it was made clear inDomtar Inc v Quebec, (SCC), [1993] 2 SCR 756, that conflicting

interpretations by an administrative tribunal do notconstitute a stand-alone basis for judicial review. [106] These approaches would appear to be consistent with the Alberta Labour Relations Board’s decision in Firestone Energy,referenced above. Consistency is desirable, but there may be strong or compelling reasons to depart from previous differences.

Factualdifferences certainly allow for distinguishing cases, just as with stare decisis in the courts. [107] The real issue here is not what was decided in Order F2010-037 (Buffalo Trail) but rather whether the Adjudicator hereignored the specific evidence before her or reached an unreasonable conclusion on it. [108] The answer to those questions is largely found in paragraphs 30-33 and 40-43 of the Order: [para 30] Shepherd’s Care, Touchmark and Revera did not explain how disclosure of specific information in their audited financialreturns could be expected to create significant interference with their respective negotiating positions in collective bargaining.

Moreover,they did not explain how their negotiating positions would be interfered with, or point to the information in the records that could beexpected to result in that harm. [para 31] As was the case in Canada (Prime Minister) and in Qualicare, (supra), I have been provided with essentially bare statementsthat significant interference to their negotiating positions will result from disclosure, should the information be disclosed, but noargument or evidence to establish the nature of the harm, its relation to the information in the records, or the likelihood that such a harmwould result from disclosure of the specific information.

The records have been left to speak for themselves; however, the harm that theparties foresee is not evident from the contents of the records. [para 32] It is possible that Shepherd’s Care, Touchmark, and Revera are concerned that AUPE would use the financial informationcontained in the records to attempt to negotiate better wages or benefits for employees than they are paid currently.

However, assumingthat this is the outcome these parties project, it is unclear to me how the outcome that AUPE would use the information in the records toattempt to negotiate higher wages -- if indeed this is the concern -- could be reasonably expected to result in significant interference tothe third parties’ own negotiating positions, or require them to adopt a different position in collective bargaining than they wouldnormally adopt.

If Shepherd’s Care typically approaches collective bargaining on a “global basis” as it states it does, no explanation hasbeen provided to explain why disclosure of the information in the records would prevent it from doing so again. [para 33] While it is conceivable that information could exist that is beneficial to a union and harmful to management, it is not the casethat all information useful to a union would be correspondingly harmful to management. It is conceivable that information could be

helpful to a union’s case, but not harmful to management’s case. To establish that information will significantly interfere with negotiating position, it is necessary to point to the information in the records that will have this effect, and explain why disclosure of this information this outcome could be expected. However, there is no evidence before me regarding the subject matter of prospective negotiations that would enable me to infer the use that could be made of the information, such that I could even find that the information would be useful to AUPE in negotiations.

Moreover, there is insufficient evidence or explanation regarding the information the third parties anticipate could result in significant interference to their negotiating positions if disclosed to allow me to draw an inference regarding the likelihood of such harm arising. [para 37] In finding that the evidence does not establish that there is any likelihood that the negotiating positions of the parties will suffer significant interference, I acknowledge that both Shepherd’s Care and Revera provided affidavit evidence for the inquiry.

The affidavit evidence of Revera’s senior vice president states: The AUPE collective agreement with the facilities in Alberta expired March 31, 2014, and our expectation is that shortly we will be involved in labour negotiations with the AUPE. Our negotiation position will be harmed because disclosure of the detailed financial information will allow the union to derive information valuable to its negotiating position and harmful to the position of Revera.

This kind of significant interference with labour relations will also create harm to the competitive position of Revera and result in undue financial loss to its business. [para 38] The evidence of the senior vice president does not correlate the specific information in Revera’s audited returns for the period ending March, 2010 with the potential for significant interference to its negotiating position in future negotiations. Section 16(1)(c)(

i) requires evidence of significant interference to negotiating position, rather than labour relations in general. Moreover, I have not been told which information would result in the harms the senior vice president anticipates, or why that outcome could be expected. [para 39] The affidavit from Shepherd’s Care’s director of human resources states: SCF also has a concern that the release of the Financial Records could potentially negatively impact its management and contractual rights in labour relations and the negotiation of collective agreements.

SCF has refused to provide financial information to unions previously. [ 109 ] The evidence of the director of human resources fails to explain how the information in the audited returns from March 2010 could affect its management and contractual rights in labour relations or the negotiation of collective agreements.

I am told that Shepherd’s Care has a concern, but I am not told the specific details of that concern. [para 40] I am unable to conclude that the information in the audited returns could be expected to have a negative impact on Shepherd’s Care’s management or contractual rights in labour relations, or the negotiation of collective agreements such that disclosure of the information could result in significant interference to its negotiating position.

I am unable to say that the disclosure of any of the information in the records could reasonably be expected to have any effect on Shepherd’s Care’s management rights or labour relations in 2014. Even if the information in the records were more recent, I would be unable to draw an inference, on the evidence before me, that its disclosure would result in harm to management rights or labour relations, given that the nature of the interference to collective bargaining or management rights has not been described for the inquiry, or attributed to the release of any of the particular information in the records.

I have been told that the information in the audited returns is financial information and confidential, but I have not been told what it is about the information that could reasonably be expected to result in significant interference to the parties’ negotiating positions within the terms of section 16(1)(c)(i). [para 41] Both Revera and Shepherd’s Care also argued that disclosure of the information in the records would significantly harm their competitive positions.

I turn now to those arguments. [para 42] The senior vice president for Revera states: Revera competes with a number of other organizations in Alberta for provision of seniors housing including Retirement Concepts, Park Place Seniors Living and Carewest. In the course of competing for opportunities, Revera’s financial information, such as information on its audited financial statements, could be used by its competitors unfairly and to take advantage of Revera.

Revera treats such information as confidential internally, and information about its audited financial statements is not disclosed except pursuant to contract or as described herein. […] [ 110 ] If information about the audited financial returns was publicly disclosed, the result would be that it would interfere significantly with the competitive position of Revera or interfere significantly with its negotiating position in bidding for new projects.

It would allow competitors to unfairly compete with Revera by providing them with information that they would not otherwise be able to obtain. [para 43] The director of human resources for Shepherd’s Care states: SCF is concerned that disclosure of the Financial Records has a real prospect of causing harm to SCF with respect to SCF’s commercial, economic or financial relations with third parties, including financial institutions, providers of services and merchandise, employees and contractors.

If the information in the Financial Records is disclosed there is potential that it could negatively affect the good reputation of SCF and/or negatively affect the position of SCF in negotiations with others for contracts for services and operations. [ 111 ] SCF has a real concern that disclosure of the Financial Records will affect the competitive position of SCF with third parties, and which may negatively affect the services provided to the residents of SCF.

Such services which may be affected by disclosure of Financial Records include: operational services, recreation services, pastoral/ spiritual services, food services. Continuing care at the Kensington Village is a small part of the services provided by SCF. SCF has a reasonable expectation that disclosure of Financial Records could have a negative effect on the operations of SCF, apart from and including Kensington.

[ 112 ] While the Financial Records are used for funding purposes with AHS, the Financial Records are also used for business purposes of SCF. For example, SCF uses the Financial Records for obtaining funding from lending facilities. [ 113 ] SCF also has a concern that the release of the Financial Records could potentially negatively impact its management and contractual rights in labour relations and the negotiation of collective agreements.

SCF has refused to provide financial information to unions previously. [ 114 ] The Adjudicator’s description of the evidence from Revera and Shepherd’s Care as “bare statements” and the documents being left to “speak for themselves” is not unreasonable. [ 115 ] Thomas Smith, Shepherd’s Care’s director of human resources, swears: 12. SCF is concerned that disclosure of the Financial Records has a real prospect of causing harm to SCF with respect to SCF’s commercial, economic or financial relations with third parties, including financial

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