Asphalt Product Industries Inc. Applicant And: Town Council of the Town of Come By Chance Respondent And: Michael Harvey in his capacity as the Information v. Privacy Commissioner of Newfoundland and Labrador, 2023 NLSC 12

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Asphalt Product Industries Inc. v. Town Council of Come by Chance (Town) , 2023 NLSC 12 Date : January 24, 2023 Docket : 202101G3621 Between: Asphalt Product Industries Inc. Applicant And: Town Council of the Town of Come By Chance Respondent And: Michael Harvey in his capacity as the Information and Privacy Commissioner of Newfoundland and Labrador Intervenor Before: Justice Peter N. Browne Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: November 15, 2022

Summary: The Applicant, Asphalt Product Industries Inc., applied under section 52(1) of the Access to Information and Protection of Privacy Act for an order that the Town Council of the Town of Come by Chance be required to disclose tax agreements it executed with North Atlantic Refining Limited and Newfoundland Transshipment Limited. The Town Council opposed releasing information pertaining to the amount of taxes to be paid as well as the years covered under the agreements pursuant to sections 39(2), 39(1)(a)(ii) and 35(1)(g).

The Court granted the application and held the information sought by Asphalt Product Industries Inc. was to be disclosed by the TownCouncil because (

i) the Court was unable to distinguish what information was “gathered” versus “generated “ under section 39(2); (ii)the Court found the information did not meet the three stage test required under section 39(1)(a)(

i) and, (iii) the Court held there was noreasonable expectation of harm to the Town Council’s “financial or economic interests” under section 35(1)(g). Appearances: John C. Taylor-Hood and Devin Drover Appearing on behalf of the Applicant Giles W. Ayers Appearing on behalf of the Respondent Andrew A. Fitzgerald, K.C. Appearing on behalf of the Intervenor Authorities Cited: CASES CONSIDERED: Newfoundland and Labrador v. Newfoundland and Labrador Teachers' Association, 2018 NLCA 54; BritishColumbia Assessment Authority, (Re), (BC IPC); Merck Frosst Canada Ltd. v.

Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27; Canada (InformationCommissioner) v. Canada (Minister of National Defence), 2011 SCC 25; British Columbia Assessment Authority, Re, (BC IPC); Paradise (Town), (Re), (NL IPC); Newfoundland and Labrador (Indigenous Affairs andReconciliation) v. Newfoundland and Labrador (Information and Privacy Commissioner), 2021 NLSC 161; Corporate Express Canada,Inc. v. The President and Vice-Chancellor of Memorial University of Newfoundland, Gary Kachanoski, 2014 NLTD (G) 107; AirAtonabee Ltd. v.

Canada (Minister of Transport), [1989] F.C.J. No. 453; Boeing Co. v. Ontario (Ministry of Economic Development &Trade), (ON SCDC), 2005 CarswellOnt 2965, 200 O.A.C. 134 (Sup. Ct. (Div. Ct.)), leave to appealrefused, Bombardier Inc. v. Ministry of Economic Development et al, 2005WL8147114 (Ont. C.A.); Ottawa Football Club v. Canada(Minister of Fitness and Amateur Sport), [1989] F.C.J. No. 7; Nalcor Energy (Re), (Report A-2017-003);Mastropietro v. Newfoundland and Labrador (Education), 2016 NLTD (G) 156 STATUTES CONSIDERED: Access to Information and Protection of Privacy Act, 2015, S.N.L. 2015, c.

A-1.2; Municipalities Act,1999, S.N.L. 1999, c. M-24 TEXTS CONSIDERED: Newfoundland and Labrador, “Report of the 2014 Statutory Review of the Access to Information andProtection of Privacy Act”, Vol. II, March 2015 (Chair: Clyde K. Wells) REASONS FOR JUDGMENT Browne, J.: INTRODUCTION [1] This appeal involves a decision by a municipal body, the Town of Come by Chance (“the Town”), to deny access to AsphaltProduct Industries Inc. (“Asphalt Product”) to certain information contained in documents described as “tax agreements” pursuant tosections 39(2), 39(1)(a)(ii) and 35(1)(

g) of the Access to Information and Protection of Privacy Act, 2015, S.N.L. 2015, c. A-1.2(“ATIPPA”). [2] Asphalt Product did not proceed with a complaint to the Commissioner for a first level review pursuant to

section 42 of theATIPPA but, instead, chose to make a direct application to this Court for an independent review of the Town’s decision pursuant tosection 52(1). BACKGROUND

[ 3 ] On April 21, 2021 Asphalt Product sent the Town an Access to Information Request (“ATIR”) for the following information: Any and all records relating to tax agreements entered into by the Town of Come by Chance which are currently in place, including specifically, - Copies of tax agreements with corporate entities to which the Town of Come by Chance is a Party - Copies of meeting minutes wherein Council voted to adopt tax agreements with corporate entities, and voting particulars (which councilors voted and how) for those agreements. [ 4 ] In correspondence dated May 17, 2021, the Town informed Asphalt Product they would grant them partial access to some of its records, but stated: In terms of the request for copies of the tax agreements with corporate entities to which the Town of Come By Chance is a party, Section 39(2) is a mandatory exception which requires that the public body with-hold information, which was obtained on a tax return, for the purpose of determining tax liability, or collecting a tax. [ 5 ] Asphalt Product filed an application for independent review by this Court on June 7, 2021.

The Information and Privacy Commissioner of Newfoundland and Labrador (“the Privacy Commissioner”) filed a Notice of Intervention pursuant to section 56(3) of the ATIPPA on June 16, 2021. [ 6 ] Pursuant to

section 19 the Town notified the third parties, North Atlantic Refining Limited and Newfoundland Transshipment Limited (hereafter referred to as “the third parties”), of Asphalt Product’s ATIR. The third parties chose not to exercise their rights pursuant to

section 53 to participate in the hearing. Sections 19 and 53 of the ATIPPA are set out below: Third party notification 19 .

(1) Where the head of a public body intends to grant access to a record or part of a record that the head has reason to believe contains information that might be excepted from disclosure under

section 39 or 40 , the head shall make every reasonable effort to notify the third party. … Direct appeal to Trial Division by a third party 53 .

(1) A third party informed under

section 19 of a decision of the head of a public body to grant access to a record or part of a record in response to a request may appeal the decision directly to the Trial Division. ISSUES 1. Does the Town’s refusal to disclose its tax agreements (or parts thereof) comply with the imperative wording used in section 39(2) ? 2. Were the tax agreements properly withheld under the three stage test under section 39(1) (a)(ii), (

b) and (c)(i)(ii) of the ATIPPA ? 3. Alternatively, were the tax agreements properly withheld under section 35(1) (g)? 4. Does the evidence clearly demonstrate that the public interest override in

section 9 of the ATIPPA authorizes the disclosure of the tax agreements? [ 7 ] For the reasons that follow, I grant Asphalt Product’s application for access to the third parties’ tax agreements which are currently under seal in the Court record. REASONS The procedure to be followed on a statutory appeal pursuant to

section 52 of the ATIPPA

[ 8 ] The only party to address the issue of procedure in their written submissions was the Privacy Commissioner. Asphalt Product and the Town took no position, however at the hearing they agreed with the position of the Privacy Commissioner as set out below. [ 9 ] A hearing under section 52(1) of the ATIPPA is governed by the procedure outlined in

section 59. The relevant sections read as follows: 52 .

(1) Where an applicant has made a request to a public body for access to a record or correction of personal information and has not filed a complaint with the commissioner under

section 42, the applicant may appeal the decision, act or failure to act of the head of the public body that relates to the request directly to the Trial Division. … 59 .

(1) The Trial Division shall review the decision, act or failure to act of the head of a public body that relates to a request for access to a record or correction of personal information under this Act as a new matter and may receive evidence by affidavit.

(2) The burden of proof in

section 43 applies, with the necessary modifications, to an appeal.

(3) In exercising its powers to order production of documents for examination, the Trial Division shall take reasonable precautions, including where appropriate, receiving representations without notice to another person, conducting hearings in private and examining records in private, to avoid disclosure of (

a) any information or other material if the nature of the information or material could justify a refusal by a head of a public body to give access to a record or part of a record; or (

b) the existence of information, where the head of a public body is authorized to refuse to confirm or deny that the information exists under subsection 17(2). [ 10 ] A reviewing Court under section 59(1) should not apply the standard normally exercised by a Court in a judicial review of an administrative body, rather, it should hear the matter new and accept evidence by way of affidavit if required (see Newfoundland and Labrador v. Newfoundland and Labrador Teachers' Association , 2018 NLCA 54 , at para. 6 ). [ 11 ] In discharging its function, the reviewing Court should be cognizant of the burden of proof placed upon the public body under section 43(1): 43 .

(1) On an investigation of a complaint from a decision to refuse access to a record or part of a record, the burden is on the head of a public body to prove that the applicant has no right of access to the record or part of the record. [ 12 ] It should also be mindful to review all relevant records cited in the applicant’s request for access to ensure that if a public body has severed information then that severance is reasonable. These principles are enshrined in the wording of sections 8(1) and 8(2): 8.

(1) A person who makes a request under

section 11 has a right of access to a record in the custody or under the control of a public body, including a record containing personal information about the applicant.

(2) The right of access to a record does not extend to information excepted from disclosure under this Act, but if it is reasonable to sever that information from the record, an applicant has a right of access to the remainder of the record. The evidence provided to the Court under sections 59(1) and 59(3) [ 13 ] The record discloses that following Asphalt Product’s ATIR the Town produced the Council Minutes where the tax agreements with the third parties were discussed. The only redactions contained in the minutes related to the identity of certain residents. [ 14 ] For the purposes of this hearing, the Town also produced two affidavits:

(1) Jessica Ryan, Town Clerk; and

(2) Colin Holloway, Town Manager. The cumulative content of these affidavits was to emphasize that the information supplied to the Town by the third parties was for the purpose of negotiating and finalizing a tax agreement and this information was shared in confidence. [ 15 ] They describe a process by which the Town undertook efforts to support this confidence that included off site meetings between Town representatives and senior management of the third parties. Once details were finalized they were discussed in Council as a whole.

Those in attendance at the meeting were told the information was to be kept in confidence and once the documents were reviewed, discussed and approved by Council they were destroyed. [ 16 ] Finally, in order to allow for a fair and fulsome hearing under section 59(1), the Town produced the tax agreements under seal

pursuant to section 59(3) of the ATIPPA which permits the Justice hearing the matter to examine records in private. Issue 1: Does the Town’s refusal to disclose its tax agreements (or parts thereof) comply with the imperative wording used insection 39(2)?

The Law [17] The Town relies upon the wording of section 39(2) to support its denial to provide access to any tax agreements it has with itsresidents: 39(2) The head of a public body shall refuse to disclose to an applicant information that was obtained on a tax return, gathered for thepurpose of determining tax liability or collecting a tax, or royalty information submitted on royalty returns, except where thatinformation is non-identifying aggregate royalty information. [18] A reading of section 39(2) requires the use of two statutory rules of construction, specifically, (1) the reading of the words of astatute in their grammatical and ordinary sense (see British Columbia Assessment Authority, Re, (BC IPC) and (2)the use of a broad and purposive approach to their

interpretation (see Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23, at paras. 21-22). [19] Section 39(2) indicates that a public body is mandated to deny the disclosure of three specific types of information: 1. Information that was obtained on a tax return. 2. Information gathered for the purpose of determining tax liability or collecting a tax. 3.

Royalty information submitted on royalty returns, except where that information is non-identifying aggregate royaltyinformation. [20] In the matter at hand, the relevant wording under consideration is “gathered for the purpose of determining tax liability orcollecting a tax”. [21] As the Justice seized with jurisdiction to hear an appeal pursuant to section 59(1), I must satisfy myself that the Town hasdischarged its burden of proof under section 43(1).

In other words, does the evidence support a finding that all or a part of theinformation contained in the tax agreements fulfill any one of the categories enumerated in section 39(2). [22] If such information is contained in the documents sought under Asphalt Product’s ATIR, then I must determine whether theTown was mandated to deny access to any or all of the information contained in a tax agreement. Position of the Parties Asphalt Product [23] Asphalt Product relies on the longstanding approach to statutory

interpretation known as the “modern principle” to determinewhat is meant by the language used in section 39(2). It argues that a remedial and harmonious approach does not permit the Town torefuse to disclose its tax agreements. The modern principle was best summarized by the Supreme Court in Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, at paragraph 21: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [24] Reliance on section 39(2) to deny access to the tax agreements would be contrary to the foundational purposes of the ATIPPAenshrined in section 3(1)(

a) and (b), and contrary to the achievement of these purposes described in section 3(2) as set out below: Purpose 3.

(1) The purpose of this Act is to facilitate democracy through (

a) ensuring that citizens have the information required to participate meaningfully in the democratic process; (

b) increasing transparency in government and public bodies so that elected officials, officers and employees of public bodies remainaccountable;

(2) The purpose is to be achieved by (

a) giving the public a right of access to records; … [25] In effect, the application of section 39(2) to refuse disclosure would result in a reduction of transparency and favor a perceptionthat municipalities are free to negotiate secret deals with preferred taxpayers using public funds. Citing the Court of Appeal decision inNewfoundland and Labrador v.

Newfoundland and Labrador Teachers' Association, at paragraph 15, it argues a proper application of themodern principle requires looking at each provision remedially and interpreting it in such a way it ensures the attainment of its legislativeobjective: [15] The appellate judge rightly pointed to Archean Resources Ltd. v. Newfoundland (Minister of Finance), 2002 NFCA 43, 215 Nfld.& P.E.I.R. 124 as the leading case in this province on interpreting provincial legislation. At paragraph 22 Green J.A. sets out theapproach to be followed:

[22] Instead of mandating some fictionalized search for a collective “legislative intention”, s. 16 [of the

Interpretation Act ] directs the court to consider every provision “remedial” and to interpret it so that it “best” ensures the attainment of its “objects” according to its “true” meaning.

This requires a consideration, as an integral part of the interpretive exercise, of the problem or “mischief” to which the legislature directed its legislative act as a remedy and then the drawing of an inference, based on the language of the whole enactment and the court’s general knowledge of the state of the pre-existing law and any information as to the broad social context in which the legislative act occurred, as to what, broadly speaking, the object or objects of the legislative act must have been.

The end result is to arrive at a “true” meaning. … [ 26 ] When applied in conjunction with section 111(2) of the Municipalities Act, 1999 , S.N.L. 1999, c. M-24 (“ Municipalities Act ”) and sections 3(1) and 8 of the ATIPPA (both set out below), the tax agreements do not fulfill the requirements under section 39(2) . Rather, they are contractual agreements made between a municipality and its residents to either vary tax rates or to provide a tax incentive or subsidy. Therefore, it is in the public interest that this type of information be disclosed. Municipalities Act Exemption and remission 111.

(1) A person may apply to a council for, and the council may, by a vote of 2/3 of the councillors in office, grant an exemption, remission or deferment of taxes and interest on the taxes, either in whole or in part, for those periods of time that the council decides and the council may determine the evidence which it shall require to warrant the exemption, remission or deferment.

(2) A council may, by a vote of 2/3 of the councillors in office, enter into tax agreements and offer tax incentives which vary existing rates of tax. (emphasis mine) ATIPPA Purpose 3 .

(1) The purpose of this Act is to facilitate democracy through (

a) ensuring that citizens have the information required to participate meaningfully in the democratic process; (

b) increasing transparency in government and public bodies so that elected officials, officers and employees of public bodies remain accountable; and (

c) protecting the privacy of individuals with respect to personal information about themselves held and used by public bodies. … Right of access 8.

(1) A person who makes a request under

section 11 has a right of access to a record in the custody or under the control of a public body, including a record containing personal information about the applicant.

(2) The right of access to a record does not extend to information excepted from disclosure under this Act, but if it is reasonable to sever that information from the record, an applicant has a right of access to the remainder of the record.

(3) The right of access to a record may be subject to the payment, under

section 25 , of the costs of reproduction, shipping and locating a record. The Town [ 27 ] In response to Asphalt Product’s position, the Town acknowledged during oral submissions that the names of the third parties were subject to disclosure, as were other terms, save and except, the amount of business and property taxes agreed to be paid to the Town and the years covered under the agreements. Its counsel argues that permitting disclosure of this type of information would involve a narrow

interpretation of the wording in section 39(2) as it would harm the privacy of taxpayers’ information and undermine any likelihood of voluntary compliance with the existing system of municipal tax collection. [ 28 ] In support of its position, it cites jurisprudence from several jurisdictions, including our own, in which Courts and Privacy Commissioners have recognized that privacy legislation such as the ATIPPA must balance the competing principles of public accountability and the right of disclosure as enshrined in sections 3(1) and 8(1) against the right of privacy for individuals and corporations to protect their tax information privacy under section 39(2) ( see Canada (Information Commissioner) v.

Canada (Minister of National Defence) , 2011 SCC 25 , at para. 79 ). Analysis [ 29 ] In the written and oral submissions provided to the Court, the Town and Asphalt Product adopt certain aspects of the Privacy

Commissioner’s position they feel support their argument. From the Court’s perspective, with regard to the application of section 39(2),the Privacy Commissioner takes the position that disclosure under this

section comes down to whether the information contained in thetax agreements was “gathered” versus “generated” for the purpose of determining a tax liability or the collection of a tax. [30] The ATIR filed by Asphalt Product on April 21, 2021, while overly broad, did specify it wished to be provided with (1) copiesof tax agreements with corporate entities to which the Town of Come by Chance is a party and, (2) copies of meeting minutes where theTown’s council voted to adopt tax agreements with corporate entities, along with the voting particulars (which councilors voted, andhow) for those agreements.

From my review, this entire record has been supplied to the Court. The meaning of gathered versus generated [31] In the written submissions provided by the Privacy Commissioner, he references the decision in British Columbia AssessmentAuthority, Re, (BC IPC), at paragraphs 95 to 96, in which the Information and Privacy Commissioner considered themeaning of the term “gathered” in the context of the British Columbia statutory equivalent to section 39(2): [95] I recognize that “gathered” is used in s. 21(2) whereas “supplied” is used in s. 21(1)(b).

These words have similar meanings andno significance may attach to one or the other being used. If, in the context of this

section of the Act, there is significance in the use ofdifferent words with similar meanings, in my view, the significance is that “gathered” serves to clarify that s. 21(2) includesinformation relating to the taxpayer that is gathered by the public body without the taxpayer’s positive or consensualinvolvement, or even knowledge. Those circumstances could be considered wider than what would be covered by “supplied” as it isused in s. 21(1)(b). These distinctions do not form the basis of my conclusion that the information in issue in this inquiry was not“gathered” information under s. 21(2).

The word “gathered”, whether or not it was used to convey wider clarifying meaning withreference to “supplied”, does not capture the BC Assessment-generated information in issue here. [96] Having regard to the context in which the word “gathered” appears, and the overall scheme and purpose of the Act, theword “gathered” does not cover information that is generated, or created, by a public body by applying skills, techniques andprofessional judgement to information that it has gathered (even where underlying information that is analyzed to create thedisputed information has been gathered directly from a taxpayer). [Emphasis added] [32] The Town submits the information was “gathered” for the dual purpose of determining a tax liability and collecting a futuretax; therefore the word “gathered” should be afforded a broad

interpretation. During oral submissions, their legal counsel described theproceeding before this Court as an example of how the two competing statutory principles of public accountability and the right ofprivacy under the ATIPPA can collide. [33] He posits that in order for something to qualify as “gathered”, it has to originate from an external source and be compiled intothe agreements. He referred this Court to Paradise (Town) (Re), (NL IPC), where a complainant sought informationfrom the municipal authority regarding the amount of tax arrears owing in respect of a particular property.

The Commissioner’s Reportheld that the amount of arrears was information “gathered for the purpose of collecting a tax,” and recommended that the respondentcontinue to withhold this information under section 39(2). Counsel for the Town quite reasonably acknowledged there was little to noanalysis accompanying the Commissioner’s conclusion in this report. [34] The affidavits of Ms. Ryan and Mr. Holloway speak to negotiations with the third parties that occurred off-site prior to theapproval of the agreements.

It would be a reasonable assumption for this Court to make that as part of this process the Town’srepresentatives both gathered and generated information in order to allow them to reach a satisfactory agreement that could be presentedto the Town’s council for approval. [35] The information provided to this Court, namely the minutes of the Town’s council meetings and the sealed tax agreements, donot address this exchange. Instead, they represent the culmination of the negotiations referenced by Ms. Ryan and Mr. Holloway.

Ineffect, while information may have been gathered, it was ultimately generated into the final tax agreements. [36] As noted by counsel for the Privacy Commissioner during his oral submissions, the key issue before the Court under section39(2) is whether the Town has discharged its evidentiary burden under section 43(1) in establishing that the tax rates agreed to and theduration of the agreements qualify as information that was “gathered”. [37] From my review of the agreements, I am not able to distinguish how the number of years and the agreed upon property andbusiness rates were “gathered” by the Town, as opposed to “generated” by the Town. [38] The Privacy Commissioner takes the position that if the Court is unable to determine from its review of the documents suppliedunder section 59(3) what information was gathered and what information was generated, then the Town has not established that theyhave engaged the exemption under section 39(2).

Consequently, the default position must be that the tax agreements should be disclosed. Conclusion [39] I accept the position of the Privacy Commissioner and conclude that the Town has not discharged its burden under section43(1) and proven the tax agreements fall within the meaning of section 39(2) of the ATIPPA. Issue 2: Were the tax agreements properly withheld under the three stage test under section 39(1)(a)(ii), (

b) and (c)(i)(ii) of theATIPPA? The Law Disclosure to business interest of a third party

39(1) The head of a public body shall 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, implicitly or explicitly, 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 (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. ( Emphasis mine ) [ 40 ] In Newfoundland and Labrador (Indigenous Affairs and Reconciliation) v.

Newfoundland and Labrador (Information and Privacy Commissioner) , 2021 NLSC 161 , at paragraph 63 , Boone, J. (as he then was) observed the following: 63 The authorities establish that this

section establishes a three-part test for the exemption of third party information. The party relying on the exemption must establish that the information is information of a nature described in s. 39(1)(a); (ii) supplied in confidence; and (iii) such that it could be reasonably expected that one of the impacts described in s. 39(1)(c)(ii) -- (iv) would result if disclosed. [ 41 ] In Corporate Express Canada, Inc. v.

The President and Vice-Chancellor of Memorial University of Newfoundland , Gary Kachanoski , 2014 NLTD (G) 107 at paragraphs 18 to 19, Whalen, J. (as he then was) addressed the burden of proof under the section 39(1) analysis where it is alleged disclosure would result in harm to the business interests of a third party: [18] Again, Cromwell J., in Merck, confirmed that the party seeking the benefit of a statutory exemption for access to information bears the burden of demonstrating that the exemption applies in the particular context and circumstances of the case.

He stated, on behalf of the majority, at paragraphs 94 and 95: … it is important to differentiate between the standard of proof and how readily that standard may be attained in a given case. It is now settled law that there is only one civil standard of proof at common law and that standard is proof on the balance of probabilities: F.H. v. McDougall , 2008 SCC 53 , [2008] 3 S.C.R. 41, at para. 40 . Nothing in the Act suggests that we should depart from this standard.

However, as noted in McDougall, "context is all important and a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences" (para. 40). Proof of risk of future harm, for example, is often not easy. Rothstein J. (then of the Federal Court) captured this point in Canada v. Canada where he noted that there is a "heavy onus" on a party attempting to prove future harm while underlining that the obligation to do so requires proof on a balance of probabilities (p. 476).

Therefore, I conclude that a third party must establish that the statutory exemption applies on the balance of probabilities.

However, what evidence will be required to reach that standard will be affected by the nature of the proposition the third party seeks to establish and the particular context of the case . … While exemptions are the exception and disclosure the general rule, with any doubt being resolved in favour of disclosure, the applicable standard of proof is still the civil standard of the balance of probabilities. [19] It is the Applicant’s argument that disclosure of the Requested Information could be harmful to its business interests.

The Applicant must provide “sufficiently clear, convincing and cogent evidence” to satisfy this proposition on a balance of probabilities. (See: F.H. v. McDougall , 2008 SCC 53 .) [Emphasis Added] [ 42 ] As to whether information can be confidential under sub (

b) the test is an objective one, and whether the information is confidential will depend upon its contents, its purposes, and the circumstances in which it was compiled or communicated. In Air Atonabee Ltd. v. Canada (Minister of Transport) , [1989] F.C.J. No. 453 , MacKay, J. stated the following regarding the confidential analysis at paragraphs 42 to 45: 42 ... whether information is confidential will depend upon its content, its purposes and the circumstances in which it is compiled and communicated, namely:

43 (

a) that the content of the record be such that the information it contains is not available from sources otherwise accessible by the public or that could not be obtained by observation or independent study by a member of the public acting on his own, 44 (

b) that the information originate and be communicated in a reasonable expectation of confidence that it will not be disclosed, and 45 (

c) that the information be communicated, whether required by law or supplied gratuitously, in a relationship between government and the party supplying it that is either a fiduciary relationship or one that is not contrary to the public interest, and which relationship will be fostered for public benefit by confidential communication. Position of the parties Asphalt Product [ 43 ] When reviewing the tax agreements provided under seal, Asphalt Product urges this Court to assure itself that disclosure would be tantamount to releasing information regarding trade secrets or profit margins to its competitors.

In so doing, the Town must establish there is a likelihood of a reasonable expectation of harm. Should the Court determine there is a reasonable expectation of harm then it must set out to determine whether it is necessary to redact those portions that reach the three stage test contemplated under section 39(1) (a)(ii) and disclose the remaining records.

The Town [ 44 ] In its written and oral submissions, the Town acknowledges that under section 39(1) (a)(ii) it must discharge the onus of satisfying the Court the tax agreements produced meet the three stage test under this section. [ 45 ] It argues that the information regarding the agreed upon tax payments and the corresponding years for payment meet the test on the following basis: (1) they disclose the tax liabilities of the contracting parties and constitute both “commercial” and “financial” information as contemplated in (a) (ii); (2) the negotiations which occurred between the parties and eventually led to the tax agreements were conducted in a highly confidential manner; and (3) the disclosure of the tax agreements would cause significant harm to the Town’s competitive position and/or interfere with its negotiating abilities with other the third party residents and thereby resulting in the failure the ability to be supplied with similar information in future due to a chilling effect that such information may be subject to public disclosure.

Analysis [ 46 ] A plain and ordinary reading of section 39(1) suggests the provision is a mandatory exception to access should a public body demonstrate it comes with the three stage test as outlined in section 39(1)(a), (

b) and (c). As noted in Corporate Express Canada, Inc. , the evidence provided to the Court must be sufficiently clear, convincing and cogent, bearing in mind that the standard of proof always remains on the balance of probabilities. [ 47 ] As set out in the reasons of MacKay, J. in the Air Atonabee Ltd. decision above under sub (b), the Court must apply the test through an objective lens to the information provided. It then must determine whether its contents, purpose and circumstances were compiled or communicated with a reasonable expectation of confidence that it not be disclosed.

Such confidence, however, cannot be contrary to the public interest. Once established, then the Court must also be reassured that the reasonable expectation of harm is more than a mere possibility (see Merck Frosst Canada Ltd. , at paras. 92, 94 and 197 ). Step 1: Section 39(1) (a): Commercial or Financial Information of a Third Party [ 48 ] The Supreme Court of Canada in Merck Frosst , at paragraph 139, considered the

interpretation of a similar statutory provision to section 39(1)(a)(ii) and adopted a proposition that had been accepted previously in federal court cases: 139 First, the terms "financial, commercial, scientific or technical" should be given their ordinary dictionary meanings. As MacKay J. in Air Atonabee stated, at p. 268: ... dictionary meanings provide the best guide and that it is sufficient for purposes of subs. 20(1)(

b) that the information relate or pertain to matters of finance, commerce, science or technical matters as those terms are commonly understood. [ 49 ] According to the online version of the Oxford English Dictionary, the word “financial” is an adjective meaning “connected with money and finance” and the same dictionary describes the word “commercial” as an adjective meaning “connected with the buying

and selling of goods”. [50] In Corporate Express Canada, Inc., at paragraphs 15 to 39, the Court directed that the

interpretation of the ATIPPA requires abroad and purposive approach that recognizes that access to information is the rule and that the

interpretation of the 39(1)(

a) exemptionmust be considered in light of its purpose to protect information owned by a party and provided to the public body in confidence. [51] In Newfoundland and Labrador (Indigenous Affairs and Reconciliation) at paragraph 78, the Court discussed the purpose of thestatutory exemption under 39(1)(

a) and referenced the Ontario Divisional Court in Boeing Co. v. Ontario (Ministry of EconomicDevelopment & Trade), (ON SCDC), 2005 CarswellOnt 2965, 200 O.A.C. 134 (Sup. Ct. (Div. Ct.)) at paragraph 15,leave to appeal refused, Bombardier Inc. v. Ministry of Economic Development et al, 2005WL8147114 (Ont. C.A.): 15 As noted by the Commissioner in his reasons, the exemption in s. 17(1) is designed to protect the "informational assets" ofprivate businesses and other organizations from which the government receives information in the course of carrying out its publicresponsibilities (Reasons, p. 3).

In order for a record to qualify for exemption under s. 17, the Act contemplates a three part test. … [52] Based on the authorities cited above, I conclude the tax agreements fall within the broad dictionary meaning of “financialinformation”. Step 2: Section 39(1)(b): Information that is Supplied, Implicitly or Explicitly, in Confidence [53] This step was addressed in paragraphs 2 to 6 of the affidavit of Ms. Ryan. In effect, she states that during the offsitenegotiations with the third parties documents were supplied in confidence which were brought back to Council for review.

Once theTown’s council reviewed them, they were destroyed to preserve this confidentiality. [54] Information supplied to a public body will not be confidential simply because a party indicates on the record that it isconfidential. In Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sport), [1989] F.C.J. No. 7, at paragraph 13, Strayer,J. stated: 13 I am satisfied that when individuals, associations, or corporations approach the Government for special action in their favour, it isnot enough to state that their submission is confidential in order to make it so in an objective sense.

Such a principle would surelyundermine much of the purpose of this Act which in

part is to make available to the public the information upon which governmentaction is taken or refused. Nor would it be consistent with that purpose if a Minister or his officials were able to exempt information fromdisclosure simply by agreeing when it is submitted that it would be treated as confidential. (There is no evidence that any such expresscommitment was made in this case.) [55] As noted above in Air Atonabee Ltd., the determination of whether information is confidential will depend upon its contents, itspurposes and the circumstances in which it was communicated. At paragraph 2 of Ms.

Ryan’s affidavit, she states the informationcontained in the tax agreements was supplied, implicitly or explicitly, in confidence. Her statement is supported to some degree by thefact that each of the tax agreements contain what I consider to be a pro-forma confidentiality clause. [56] The difficulty I face in determining this step is whether the tax rates to be paid by the third parties and the duration of theagreements fall into the category of information that was supplied or gathered by the Town versus information generated by the Town.

Ageneral statement in an affidavit from a Town employee to the effect the information was supplied, absent any supporting evidence, doesnot assist me in any way. Therefore, I am unable to conclude by way of objective assessment whether this information was supplied orgathered (implicitly or explicitly) by the Town’s representatives during negotiations.

Step 3: Section 39(1)(c)(i) - information arises from a fiduciary relationship or is not contrary to the public interest, and willfoster the public benefit by confidential communication, or section 39(1)(c)(ii) - result in similar information no longer beingsupplied to the public body when it is in the public interest that similar information continue to be supplied. [57] I move now to the third criterion (c) “the party supplying the information is either in a fiduciary relationship or one that is notcontrary to the public interest, and which relationship will be fostered for public benefit by confidential communication”.

This requires abroader analysis and brings into play the competing ATIPPA principles of the right to privacy and public accountability. [58] Prior to embarking on an analysis of the last step, I am of the view that I should, as a

preamble, examine the context of thiswording in light of these two competing principles. Right of privacy [59] On the privacy side, there is a concern that the disclosure of the tax agreements would cause significant harm to the Town’scompetitive position by interfering with its ability to negotiate with potential taxpayers.

Absent the right of privacy, it would result in thefailure to be supplied with similar information in future due to a chilling effect that such information may be subject to public disclosure. [60] It would be a trite observation amounting to judicial notice that municipal bodies throughout rural communities in this Provinceare struggling to survive from their existing tax base. However, that is not the question before the Court.

Rather, the question that is, iswhether public disclosure of the end product of the negotiation process would create a reasonable expectation of harm to the financialinterests of a taxpayer or the commercial interests of a municipal town council. [61] The evidence before the Court (see the Ryan affidavit, at paras. 1-6) disclosed that any documents supplied by the third partiesto the Town’s representatives during the negotiations were destroyed before the tax agreements were presented to the Town’s council fora final approval.

I make this observation in passing, that had this information still existed and been included as part of Asphalt Product’sATIR, then this would have required a different analysis regarding disclosure under section 39(1).

Public Accountability [ 62 ] On the public accountability side, municipalities are required under

section 109 of the Municipalities Act to publish their tax structure annually: Publication 109.

(1) A council shall publish annually a copy of its tax structure in a newspaper circulated in the municipality and by public notice in the municipality. [ 63 ] Contrary to the submissions of the Town, I do not accept the affidavit evidence of Mr. Holloway that public disclosure of the property and business tax rates to be collected by the Town through its tax agreement would assist the competitors of the third parties in calculating sensitive commercial interests such as profitability, and, as such, lead to an undermining of the confidentiality of the negotiating process.

This is especially so in this case where all the documents supplied to the Town during the negotiations were destroyed. [ 64 ] I also fail to see how disclosure of this specific financial information would cause irreparable harm to the Town’s competitive position when negotiating tax agreements with other residential or business taxpayers.

I recognize the Town’s argument that the main goal of Asphalt Product’s ATIR is to gain any possible advantage in negotiating its own tax agreement, but the availability of a tax agreement is not exclusive; every corporate taxpayer including Asphalt Product is free to approach the Town for such a goal should circumstances require. As noted in the written submissions from the Town, municipal bodies are able to treat taxpayers unequally if permitted to do so by their empowering statute. The power to enter into tax agreements, and offer tax incentives that vary existing rates of tax under

section 111, is an example of a statutorily-authorized municipal tax discrimination. [ 65 ] Statutory provisions like section 111(1) and (2) also trigger the importance of the principle of public accountability surrounding the use of public funds. This recognition was discussed in Newfoundland and Labrador v. Newfoundland and Labrador Teachers' Association , at paragraphs 28 to 30 , when the Court stated the public has a legitimate and significant interest in the identities of people who receive public money.

Disclosing the names of people who receive public funds promotes both meaningful participation in the democratic process and accountability pursuant to the ATIPPA : [ 28] […] The public has a legitimate and significant interest in the identities of the people who receive public money. [29] The legislative purpose is stated in s. 3(1): The purpose of this Act is to facilitate democracy through (

a) ensuring that citizens have the information required to participate meaningfully in the democratic process; (

b) increasing transparency in government and public bodies so that elected officials, officers and employees of public bodies remain accountable ; and (

c) protecting the privacy of individuals with respect to personal information about themselves held and used by public bodies. [Emphasis added.] [30] Disclosing names promotes both meaningful participation in the democratic process (s. 3(1)(a)) and accountability (s. 3(1)(b)). [ 66 ] The wording contained in sections 39(1)(c)(

i) and (ii) is clearly meant to safeguard situations that when the override is contemplated it ultimately must never be contrary to the public interest. Here, the disclosure of any information provided by the third parties during the negotiations would favour tipping the scales toward the principle of the right to privacy; whereas the disclosure of the final tax agreements themselves would favour tipping the scales in favour of the principle of public accountability. Conclusion [ 67 ] Accordingly, I determine that the information contained in the tax agreements does not meet the test required under section 39(1)(a)(

i) and (ii) and, therefore, should be disclosed. Issue 3: Alternatively, were the tax agreements properly withheld under section 35(1) (g)?

The Law [ 68 ] Section 35(1) (

g) of the ATIPPA permits a public body to refuse disclosure of information in circumstances where such disclosure could reasonably be expected to prejudice its “financial or economic interests”, and states as follows: 35.

(1) The head of a public body may refuse to disclose to an applicant information which could reasonably be expected to disclose information, the disclosure of which could reasonably be expected to prejudice the financial or economic interest of the government of the province or a public body. [ 69 ] The wording of this

section incorporates a harms test into the statutory analysis. In Newfoundland and Labrador (Indigenous Affairs and Reconciliation) Boone, J. (as he then was) discussed the harms test at paragraph 24: [24] The Supreme Court elaborated on the “reasonable expectation of probable harm” test in Ontario (Ministry of Community Safety & Correctional Services) v.

Ontario (Information & Privacy Commissioner), 2014 SCC 31 , at para. 54 : 54 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 . As the Court in Merck Frosst emphasized, the statute tries to mark out a middle ground between that which is probable and that which is merely possible. An institution must provide evidence "well beyond" or "considerably above" a mere possibility of harm in order to reach that middle ground : paras. 197 and 199.

This inquiry of course is contextual and how much evidence and the quality of evidence needed to meet this standard will ultimately depend on the nature of the issue and "inherent probabilities or improbabilities or the seriousness of the allegations or consequences ": Merck Frosst, at para. 94, citing C. (R.) v. McDougall, 2008 SCC 53 , [2008] 3 S.C.R. 41 (S.C.C.), at para. 40 . [Emphasis Added] [ 70 ] The analysis is contextual, and the amount and quality of evidence required to demonstrate probable harm depends on the nature of the issue before the Court. It is to be decided on a case by case basis.

In Newfoundland and Labrador (Indigenous Affairs and Reconciliation) , at paragraphs 54 and 55, Boone, J. (as he then was) states: [54] Unlike the situation with the claimed harm to the relationship with the federal government that would result from disclosure, in respect of the NCC there is direct evidence that the NCC would refuse to share information with the Province in the future if the records are disclosed.

If such information is not disclosed, then this would have negative implications for the ability of the Province to manage resource projects in Labrador, which in turn would affect the financial position of the Province . [ Emphasis Added] [55] Consequently, the Province has satisfied its onus of showing that there is a reasonable expectation of harm to the financial position of the Province and to the ability of the Province to manage the economy if the records are disclos ed.

Position of the Parties Asphalt Product [ 71 ] According to Asphalt Product, the Town has failed to meet the necessary evidentiary threshold in demonstrating there is “well beyond” a mere possibility of harm should the tax agreements be disclosed.

Instead, the Town has only provided the Court with speculation about the impact of financial or economic harm. [ 72 ] They argue the content of the Holloway affidavit, which states that disclosing the confidential information contained in the tax agreements would lead to other parties seeking tax agreements on similar terms, or to lobby for reduced tax rates, is not evidence of financial or economic harm. Rather, it contends, the Town has no obligation to enter into these types of agreements or to reduce taxes.

Instead, as a municipal body the Town has the sole legislative authority to impose a tax at any rate they determine to be appropriate, regardless of the concerns of some of its residents, and similarly can decline to enter into any tax agreements that they believe to be disadvantageous. The Town [ 73 ] The Town argues that paragraph 8 of Mr. Holloway’s affidavit demonstrates three harmful consequences that a disclosure of the tax agreements would have on its financial and economic interests : (

a) Without another avenue to reduce their tax burden, taxpayers needing tax relief will either relocate or Council will be forced to adjust its mil rates across the board. Either one of these outcomes will reduce the Town’s income. (

b) Taxpayers will have less certainty in planning their affairs. The Town’s income is dependant on taxpayers, and any factor that causes taxpayers to relocate or shut down negatively affects the Town. (

c) Without the benefit of a tax agreement, the Town will be forced to participate in an appeal process under the Assessment Act every taxation year for which there is a dispute, including by spending money to engage counsel.

Analysis Reasonable expectation of probable harm [74] Under this

section of the ATIPPA, as noted by the Court in Newfoundland and Labrador (Indigenous Affairs andReconciliation), the Town must provide direct evidence that disclosure of the tax agreements would prejudice its financial or economicinterests. Mere speculation wrapped in supposition is insufficient to make the connection between disclosure and the expected prejudiceflowing therefrom.

The analysis is contextual, and the amount and quality of evidence required to demonstrate probable harm should beviewed on a case by case basis. [75] In this appeal, the third parties failed to intervene and the Town did not provide any direct evidence from them by way of anyaffidavit in support of their arguments that should the agreed upon tax rates be disclosed along with the time period of the agreements,then this would lead to (

a) commercial taxpayers to relocate to other municipalities; (

b) force the Town to lower its mil rates; or (c)increase the number of occasions it has to become engaged in protracted municipal assessment appeal processes. [76] I fail to see how disclosure of this information would limit the Town’s ability to negotiate a favourable agreement with othercommercial taxpayers. Like the current tax agreements, the Town has the statutory ability to request the taxpayer to supply the necessaryfinancial or economic information required.

Once gathered, the Town can apply its own internal expertise and knowledge to generate asatisfactory tax agreement for the Town’s council to approve (see Nalcor Energy (Re), (Report A-2017-003), at para.11). Conclusion [77] Accordingly, I find the tax agreements do not fall within the meaning of section 35(1)(g). Issue 4: Does the evidence clearly demonstrate that the public interest override in

section 9 of the ATIPPA authorizes thedisclosure of the tax agreements? The Law [78] Assuming I am in error in my analysis under section 35(1)(g), and the Town has established a reasonable expectation of harmcaused by the Court permitting the disclosure of the tax rate information and the duration of the tax agreements, then section 9(1)(

f) ofthe ATIPPA contains a public interest override. This override applies to

section 35 where it is “clearly demonstrated” that the publicinterest in disclosure outweighs the reason for the exception. The purpose of this exception is to ensure that records are not releasedwhich will have a negative financial or economic impact on a public body. [79] Section 9(1)(

f) of the ATIPPA states as follows: 9.

(1) Where the head of a public body may refuse to disclose information to an applicant under a provision listed in subsection (2), thatdiscretionary exception shall not apply where it is clearly demonstrated that the public interest in disclosure of the informationoutweighs the reason for the exception. [Emphasis Added] … (

f) section 35 (disclosure harmful to the financial or economic interests of a public body); … [80] In Mastropietro v. Newfoundland and Labrador (Education), 2016 NLTD (G) 156, Murphy, J. considered the meaning ofsection 9 of the ATIPPA and was guided by Ontario jurisprudence arising out of

section 23 of Ontario Access to Information legislation.While the wording in

section 9 is not dissimilar to

section 23, it is not identical. [81]

Section 23 of the Ontario legislations reads as follows: An exemption from disclosure of a record under sections 13, 15, 17, 18, 20, and 21, does not apply where a compelling public interestin the disclosure of the record clearly outweighs the purpose of the exemption. [Emphasis added] [82] The onus of clearly demonstrating that the public interest from disclosure outweighs the reason for the exception rests with theparty seeking the disclosure.

This was also addressed by Murphy, J. in Mastropietro at paragraphs 47, 49, and 50: [47] I agree with the general principle that a party asserting a right has the onus of establishing entitlement to that right.

I also agreethat this onus cannot be absolute but must be relaxed somewhat in a situation such as this, where the Applicants have not hadthe benefit of reviewing the document on which they are required to make submissions as to whether the public interest overrideshould prevail. … [49] In my view it would also be open to the party bearing the onus to present evidence on an appeal on the issue of the public interestin disclosure. As noted earlier, an appeal to this Court is a new matter or a hearing de novo and section 59(1) of the Act specifically

provides that the Court may receive evidence by affidavit. I note that the foregoing provision is permissive in nature and does not preclude the Court from receiving evidence in other forms. [50] I am not saying that it is incumbent upon a person seeking to establish that there is a sufficient public interest in disclosure so as to outweigh the purpose of the exception from disclosure, to present evidence of the public interest in disclosure, in every case. There may well be cases where the public interest in disclosure, is so notorious as to be capable of judicial notice by the Court.

There may be other cases, where the records or documents themselves, are such that the Court is able to conclude there is a public interest in disclosure.

However, in the absence of these or other similar circumstances, it is my view, that a person seeking to argue on an appeal, that the public interest in disclosure clearly outweighs the purpose of the exception from non-disclosure would be well advised to present evidence to the Court to support such an argument. [Emphasis Added] Position of the Parties Asphalt Product [ 83 ] Asphalt Product relies on the Court of Appeal’s decision in Newfoundland and Labrador v.

Newfoundland and Labrador Teachers’ Association , at paragraphs 28 to 30, for the authority that the public has a legitimate and significant interest in knowing the identities of people who receive public money. [ 84 ] In their view, municipal tax agreements are akin to a taxpayer receiving public money through subsidized tax rates, so there is a public interest in having this type of information disclosed.

In support of its position, Asphalt Product cites the examples provided by the Court of Appeal at paragraph 31 of Newfoundland and Labrador such as campaign donors, family members or friends of elected officials who may benefit from their connection to the official. Overall, any economic or financial harm to the Town would be displaced by the public being able to know who is receiving public money through an exemption, remission or deferment of taxes and interest. The Town [ 85 ] The Town did not address the applicability of the

section 9 override in their written submissions but did so in their oral submissions by indicating to the Court they accept the law as set out in the Privacy Commissioner’s Memorandum of Fact and Law. Analysis [ 86 ] When interpreting

section 9 of the ATIPPA it must be recognized that the Ontario legislation uses the word “compelling” immediately before the phrase “public interest”. The word “compelling” does not appear in the ATIPPA and this distinction is significant. Therefore, in this jurisdiction the discretionary exception shall not apply where it is clearly demonstrated that the public interest in disclosure of the information outweighs the reason for the exception.

There is no requirement to clearly demonstrate that a particular public interest is “compelling”. [ 87 ] At paragraph 36 of the Privacy Commissioner’s Memorandum of Fact and Law, counsel refers the Court to the Report of the 2014 Statutory Review of the ATIPPA (“The 2014 Review”), where the 2014 Review Committee specifically examined

section 23 of the Ontario legislation. In its list of recommendations it chose to omit the word “compelling”. These recommendations were subsequently adopted by government, and therefore, the intentional omission of the word “compelling” from the government’s draft legislation is indicative of its intention that the public interest exception in

section 9 of the ATIPPA is not required to be compelling. [ 88 ] The 2014 Review also made recommendations concerning the importance of public disclosure while reasonably accounting for personal privacy in the context of municipal governance. At page 286 of the 2014 Review the Committee made the following observations and recommendations: The current

interpretation of the ATIPPA in the draft guidelines for municipalities is so restrictive that open and accountable local government is accorded secondary status, and as a result, the balance that should be present does not exist . The Municipalities Act, 1999 is a comprehensive regime providing for all aspects of municipal governance. The provisions of that Act should be determinative of the rules respecting disclosure and transparency in municipal governance, not a general statute like the ATIPPA that provides for management of personal information across. The operation of public bodies generally.

The principles respecting protection of personal information cannot be ignored but neither can the principles of good municipal governance. The Department of Municipal Affairs should take the lead and, perhaps with assistance from Municipalities Newfoundland and Labrador, establish a list of information that should be available to all citizens in the interests of transparency and accountability in municipal governance.

In doing so it is important to recognize that when a citizen, individual or corporate, requests a municipal council to grant a permit, tax relief, a license, are zoning of land, a contract to provide goods or services, or any other benefit, that grant will not be made by some uninvolved detached private enterprise, but rather by all of the other citizens of that municipality, through the agency of the council.

Those other citizens are entitled to be informed as to the basis on which the grant of permit or other benefit was made, to whom, what property was affected, the extent of the rights granted and all other information used by the council to make the decision to grant the

permission or other benefit. It is only with that information that all other citizens will be able to assess whether the council has acted within the law and regulations that protect the interests of all citizens of the municipality . Access to such information is a critical factor in achieving harmony and citizen confidence in the fair management of the municipality.

Thus, when a citizen is applying to a council for the grant of any such benefit, that citizen does so in the full knowledge that any information provided to justify the granting of the requested benefit must be accessible to the rest of the citizens other municipality and the citizen requesting the benefit is consequently consenting to its release. The Council should only be expected to hold in confidence any information the requesting citizen asks to be kept confidential.

The council will then have to decide whether it would be proper to make a decision on the application without that information being available to the public. The other option is that the confidential information be returned to the applicant and the decision made without the benefit of it, unless the applicant agrees to withdraw the request for confidentiality . (Emphasis added) Conclusion [ 89 ] Having previously reviewed the sealed tax agreements and determined they are appropriate for the Town to disclose under either section 39(1) (a)(ii) or 35(1)(f), I find Asphalt Product has discharged its onus under

section 9 by establishing that there is a sufficient public interest in disclosure of the tax agreements that outweighs the statutory exceptions relied upon by the Town. DISPOSITION [ 90 ] For the reasons cited above, I grant Asphalt Product’s application for access to the third parties’ tax agreements. Pursuant to the jurisdiction granted to me under section 60(1) (c)(

i) and (ii) of the ATIPPA , the Town will permit Asphalt Product to have access to the tax agreements 30 days following the filing of the formal order. _____________________________ Peter N. Browne Justice