) THE TORONTO-DOMINION BANK Applicant – v. –, 2017 ONSC 1507

CITATION : Toronto-Dominion Bank v. Ryerson University, 2017 ONSC 1507 DIVISIONAL COURT FILE NO.: 268/16 DATE: 20170317 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SWINTON, HARVISON YOUNG and THORBURN JJ.

BETWEEN: ) THE TORONTO-DOMINION BANK Applicant – and – RYERSON UNIVERSITY, JOHN DOE REQUESTER and INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO Respondents ) ) ) ) ) ) ) ) ))))) Christine Lonsdale , for the Applicant Julia Shin Doi, Giselle Basanta and Jean- Claude Killey , for the Respondent Ryerson University Lawren Murray , for the Respondent Information and Privacy Commissioner of Ontario ) ) ) HEARD at Toronto: February 23, 2017 SWINTON J.: Overview [ 1 ] The Toronto-Dominion Bank (“the applicant”) brings this application for judicial review to quash Order PO-3598 of the Information and Privacy Commissioner of Ontario (the “IPC”), which ordered disclosure of a contract between the applicant and Ryerson University (“the University”).

The adjudicator rejected the applicant’s argument that the contract was proprietary business information exempted from disclosure by s. 17(1) of the Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. F. 31 (“the Act”), finding that the commercial information was not supplied in confidence to the University. [ 2 ] For the reasons that follow, I would dismiss this application for judicial review, as the decision of the adjudicator was reasonable.

Factual Background [ 3 ] The record at issue is an Affinity Agreement (“the Agreement”) concluded in 2012 that amended an earlier agreement from 2005 between the University and MBNA Canada Bank. The assets of MBNA were substantially acquired by the applicant in 2011. Pursuant to the Agreement, the applicant promotes certain financial service products to the University’s alumni, staff and students.

In return, the University receives compensation. [ 4 ] The applicant takes the position that the market for affinity arrangements is very competitive, and the information in the Agreement is confidential commercial information that is competitively sensitive. [ 5 ] In 2014, the University received a request for the disclosure of the Agreement pursuant to the Act , to which the University is subject. The applicant took the position that the Agreement should not be disclosed because it was exempted third party information under s. 17(1) of the Act. That

section provides: A head shall refuse to disclose a record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly, where the disclosure could reasonably be expected to, (

a) prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group

of persons, or organization; (

b) result in similar information no longer being supplied to the institution where it is in the public interest that similar information continue to be so supplied; (

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

d) reveal information supplied to or the report of a conciliation officer, mediator, labour relations officer or other person appointed to resolve a labour relations dispute. [ 6 ] After considering the request, the University decided that the Agreement should be disclosed with the exception of

Schedule B, because the

Schedule contained commercial and financial information that had been disclosed in confidence. [ 7 ] Both the applicant and the requester appealed the decision to the IPC. The Decision of the IPC [ 8 ] The adjudicator applied the three-part test developed in the jurisprudence of the IPC with respect to the application of s. 17(1) , asking the following questions: 1. Does the record reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information? 2. Was the information supplied to the government institution in confidence, either implicitly or explicitly? 3.

Does the prospect of disclosure of the record give rise to a reasonable expectation that one of the harms specified in paragraphs (

a) through (

d) of s. 17(1) would occur? [ 9 ] The adjudicator found that the Agreement constituted commercial information. However, she concluded that the information was not supplied in confidence to the University.

Citing past decisions of the Divisional Court upholding IPC decisions applying s. 17(1) , she stated that “[t]he contents of a contract involving an institution and a third party will not normally qualify as having been ‘supplied’ for the purpose of s. 17(1) ”, because they have been treated “in general” as mutually generated (Reasons at para. 18). [ 10 ] The adjudicator applied the two exceptions to this general rule to the facts of this case: the inferred disclosure and immutability exceptions. She concluded that neither applied.

She described the first as applying “where disclosure of the information in a contract would permit the making of accurate inferences with respect to underlying non-negotiated confidential information supplied by the third party to the institution.” The immutability exception applies “where a contract contains information supplied by a third party that is not susceptible to negotiation” (Reasons at para. 19). [ 11 ] She also rejected the applicant’s argument that the requirement the information be “supplied” was a misinterpretation of the Act , because that requirement is not expressly set out in the French language version of the Act.

She also rejected the applicant’s argument that she should apply a new exception for innovative contractual arrangements. The Standard of Review [ 12 ] As the adjudicator was interpreting and applying her home statute to the facts of this case, the standard of review is reasonableness, as the applicant concedes. The Issues [ 13 ] The applicant argues that the adjudicator reached an unreasonable decision for a number of reasons: 1.

She failed to take into account that the purpose of the Act requires the IPC to both facilitate access to information and to strike a balance that protects third party confidential information. 2. She erred in her finding of the shared meaning of the French and English versions of the Act . 3. She improperly pursued a results-oriented analytical approach, that focused on the type of the document - a contract - rather than whether the information was supplied in confidence. Analysis Did the adjudicator fail to consider the purposes of the Act ? [ 14 ]

Section 1 of the Act sets out the purposes of the legislation: (

a) to provide a right of access to information under the control of institutions in accordance with the principles that, (

i) information should be available to the public, (ii) necessary exemptions from the right of access should be limited and specific, and (iii) decisions on the disclosure of government information should be reviewed independently of government; and (

b) to protect the privacy of individuals with respect to personal information about themselves held by institutions and to provide

individuals with a right of access to that information. [15] The applicant relies on a statement of the Supreme Court of Canada in Merck Frosst v. Health Canada, 2012 SCC 3 at para.4, a case dealing with the federal legislation on access to information: The Act strikes a careful balance between the sometimes competing objectives of encouraging disclosure and protecting third partyinterests.

While the Act requires government institutions to make broad disclosure of information, it also provides exemptions fromdisclosure for certain types of third party information, such as trade secrets or information the disclosure of which could cause economicharm to a third party. [16] The applicant argues that the adjudicator in the present case failed to account for the balance between the two goals of theAct. I disagree.

The adjudicator was well aware that s. 17(1) was drafted so as to protect confidential information provided by thirdparties to government institutions (see, for example, the Reasons at paras. 10 and 17). [17] The passage from Merck Frosst does not invite the IPC, in applying the legislation, to engage in a free form balancing of theinterests of the third party against the interests of disclosure of information under the control of government institutions.

Rather, the IPCmust interpret and apply the legislation, whose terms set out the Legislature’s determination of the appropriate balance to be madebetween competing interests. [18] The issue for this Court to determine, in reviewing the IPC’s decision on disclosure, is whether the IPC’s

interpretation andapplication of the provision was a reasonable one, given the facts of the case before it. Did the adjudicator unreasonably interpret the Act in holding that the information must be “supplied”? [19] The applicant argues that the adjudicator misinterpreted the Act by relying on the word “supplied” in the English version. There is no equivalent word, such as “fourni”, in the French version of the Act. The applicant argues that the proper

interpretation lies inthe French version, because the English version is ambiguous. The French version requires the decision-maker to focus on theconfidential nature of the information, rather than its source. [20] I set out below the English and French versions of s. 17(1) of the Act (emphasis added): 17.

(1) A head shall refuse to disclose arecord that reveals a trade secret or scientific,technical, commercial, financial or labourrelations information, supplied inconfidence implicitly or explicitly, wherethe disclosure could reasonably be expectedto,

a) prejudice significantly the competitiveposition or interfere significantly with thecontractual or other negotiations of a person,group of persons, or organization;

b) result in similar information no longerbeing supplied to the institution where it is inthe public interest that similar informationcontinue to be so supplied;

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

d) reveal information supplied to or the reportof a conciliation officer, mediator, labourrelations officer or other person appointed toresolve a labour relations dispute. 17.

(1) La personne responsable refuse dedivulguer un document qui révèle un secretindustriel ou des renseignements d’ordrescientifique, technique, commercial, financierou qui ont trait aux relations de travail, dontle caractère confidentiel est implicite ouexplicite, s’il est raisonnable de s’attendre àce que la divulgation ait pour effet, selon lecas :

a) de nuire gravement à la situationconcurrentielle ou d’entraver gravement lesnégociations contractuelles ou autres d’unepersonne, d’un groupe de personnes ou d’uneorganisation;

b) d’interrompre la communication derenseignements semblables à l’institution,alors qu’il serait dans l’intérêt public quecette communication se poursuive;

c) de causer des pertes ou des profits indus àune personne, un groupe de personnes, uncomité, une institution ou un organismefinanciers;

d) de divulguer des renseignements fournis àun conciliateur, un médiateur, un agent desrelations de travail ou une autre personnenommée pour régler un conflit de relations detravail, ou de divulguer le rapport de l’une deces personnes. [21] The opening words of the French version of s. 17(1) speak of information “dont le caractère confidential est implicite ouexplicite”. The provision does not state that the information was “supplied” to the government. [22] In paragraphs (

b) and (

d) of s. 17(1), the English version again uses the term “supplied”. In contrast, the French version ofparagraph (

b) contains the word “communication”, while in paragraph (

d) it speaks of information “fournis” or supplied to a conciliator,mediator or others involved in resolving labour relations conflicts. Thus, the English word “supplied” is conveyed in different ways inthe French version. [23] In interpreting bilingual statutes, the task of the interpreter is to determine the shared meaning of the French and Englishversions of the Act, if that is possible (R. v. Daoust, 2004 SCC 6 , [2004] 1 S.C.R. 217 at paras. 26-27). As the Supreme Court

stated at para. 28 (citations omitted): We must determine whether there is an ambiguity, that is, whether one or both versions of the statute are “reasonably capable of morethan one meaning” … If there is an ambiguity in one version but not the other, the two versions must be reconciled, that is, we mustlook for the meaning that is common to both versions ...

The common meaning is the version that is plain and not ambiguous … The Court also instructed that the shared meaning must be consistent with the intention of the Legislature (at para. 30). [24] I agree with the adjudicator’s analysis on this issue - namely, that the shared meaning of the French and English versionincorporates the notion that the information is supplied or conveyed to the government institution by the third party. As the DivisionalCourt stated in Canadian Medical Protective Association v.

Loukidelis, (at para. 52): ... the French version of s.17(1) may be read in a way that implicitly includes the notion of “supplied”, as the purpose of s.17(1)incorporates the idea that the exemption is designed to protect information “received from” third parties, a notion that conforms with theconcept of “supplied”. Thus, the presence or absence of the verb “supplied” in the French version is not determinative, and the Englishand French versions may be read harmoniously. [25] Alternatively, I agree with the adjudicator’s conclusion that if there is ambiguity, it is found in the French version of thelegislation.

The English version clearly requires that the information be “supplied” by the third party. As the Supreme Court said inDaoust, the shared meaning is the one that is plain and not ambiguous. Moreover, the

interpretation is consistent with the purpose of theAct, as set out in s. 1 – that is, information in the control of governmental institutions should be available to the public subject to limitedand specific exemptions. Was the IPC decision unreasonable? [26] I turn now to the reasonableness of the adjudicator’s conclusion that the commercial information of the applicant was notsupplied in confidence to the University. The applicant argues that the adjudicator improperly focussed on the contractual nature of theAgreement, rather than the nature of the information found in it.

It argues that there is no basis in the text of s. 17(1) to support theconclusion that third party information loses the protection of s. 17(1) just because it is found in a contract, and the approach is notconsistent with Merck Frosst or the decision of the Alberta Court of Appeal in Imperial Oil Limited v.

Calgary (City), 2014 ABCA 231. [27] The applicant concedes that it is asking this Court to find the approach followed by the adjudicator unreasonable despite thefact that there have been numerous decisions of the Divisional Court that have found the approach to the application of s. 17(1)reasonable (for example, Boeing Co. v. Ontario (Ministry of Economic Development and Trade), (ON SCDC),[2005] O.J. No. 2851 (leave to appeal denied M32858); Canadian Medical Protective Association, above; HKSC Developments L.P. v.Infrastructure Ontario, 2013 ONSC 6776; Miller Transit Ltd. v.

Ontario (Information and Privacy Commissioner), 2013 ONSC 7139;and Aecon Construction Group Inc. v. Ontario (Information and Privacy Commissioner), 2015 ONSC 1392 (Div. Ct.)). I note thatMiller and Aecon were decided after Merck Frosst. However, the Divisional Court rejected the argument that the IPC’s approach to theinterpretation of s. 17(1) was no longer good law (Miller at para. 44; Aecon at para. 13). [28] In my view, there is no merit to the applicant’s argument that Merck Frosst calls into question the reasonableness of theapproach of the adjudicator in the present case.

First, it is important to remember the role of this Court in reviewing a decision of theIPC concerning the application of s. 17(1). The application of that provision raises questions of fact and mixed fact and law, anddeference is owed to the decision of the IPC on judicial review. I note that in contrast, in the application of the federal access toinformation legislation, as in Merck Frosst, the Federal Court acts as the first line decision-maker in appeals from the decisions ofinstitutions.

In other words, the role of the Federal Court is similar to that of the IPC, and no deference is paid to the decision of theinstitution on disclosure. Similarly, in Canadian Broadcasting Corp. v. Northwest Territories (Commissioner), 1999 CarswellNWT 110,a case on which the applicant relies, the Court was exercising an appeal from the head’s decision, and its task was to determine thematter afresh (at paras. 7 and 12). [29] Second, the information in issue in Merck Frosst was supplied by an applicant seeking approval of drugs in a regulatoryprocess.

The case was not dealing with information disclosed in the course of negotiations for a contract between a governmentalinstitution and a third party. [30] I turn now to the decision of the adjudicator. In doing so, I note that there is one passage in Merck Frosst that is of assistancein the present case.

That is the statement of the Court that the determination whether information is supplied in confidence is primarily aquestion of fact that must be determined on the basis of the record before the decision-maker (at paras. 157,158). [31] The applicant argues that the adjudicator unreasonably focused on the nature of the document as a contract and reached anunreasonable conclusion because she failed to find that disclosure would reveal information about the applicant’s standard form affinityagreements.

The applicant argues that it provided a draft standard form agreement to the University which differs very little from thesigned document. That draft agreement was provided in confidence. [32] The adjudicator set out her reasons for rejecting this argument in para. 45: ... Although the bank argues forcefully that the structure of the agreement is an informational asset that it supplied to the university, ithas not identified with any precision what particular aspect of the contract’s “structure” it seeks to protect.

In any event, I am notpersuaded that the agreement’s structure can be viewed as separate from its terms. The structure of a contract is part of what gives itsterms meaning and it is artificial, if not impossible, to distinguish a contract’s terms from its structure. Having reviewed the bank’srepresentations and the agreement, I find that the agreement, as a whole, represents a negotiated arrangement between the bank and theuniversity. The bank acknowledges that there was some negotiation, in that the terms of the agreement differ somewhat from the termsof the bank’s standard draft agreement.

Indeed, this is evident from my review of the two documents. The fact that negotiation mayhave been limited does not change the fact that the agreement represents terms mutually agreed upon by the parties.

She also held that the structure of the Agreement did not constitute immutable information, because the information, including thestructure, was subject to negotiation (at para. 53). [33] Having reviewed the Agreement and the earlier draft, I find that the adjudicator reached a reasonable conclusion. The onuswas on the applicant to show that the Agreement was supplied in confidence to the University.

Given that some of the terms werechanged in the Agreement and given that the Agreement was the result of contractual negotiations, it was reasonable for the adjudicatorto conclude that the Agreement was not supplied in confidence. The adjudicator’s approach is consistent with past decisions of the IPCthat have been upheld on judicial review. It is also consistent with the approach to information in contracts adopted in other jurisdictions(see, for example, Canadian Broadcasting, above at para. 56 (N.W.T.S.C.); Canada Post Corp. v. National Capital Commission, 2002FCT 700 , [2002] F.C.J.

No. 982 (T.D.) at para. 14; Canadian Pacific Railway v. British Columbia (Information and PrivacyCommissioner), 2002 BCSC 603 , [2002] B.C.J. No. 848 (S.C.) at para. 72; and Re Atlantic Highways Corp. (NS SC), [1997] N.S.J. No. 238 (S.C.) at para. 40). [34] Moreover, the adjudicator’s approach is consistent with the purpose of the Act, namely that information should be available tothe public and exemptions should be limited and specific.

As this Court stated in Miller Transit, above at para. 44: The IPC adjudicator’s decision was also consistent with the intent of the legislation which recognizes that public access to informationcontained in government contracts is essential to government accountability for expenditures of public funds: see Vaughan (City) v.Ontario (Information and Privacy Commission), 2011 ONSC 7082, 109 O.R. (3d) 149 (Div. Ct.), at para. 49. [35] The applicant argues that the decision of the adjudicator is inconsistent with the decision of the Alberta Court of Appeal inImperial Oil, above. I disagree.

The Court in that case was dealing with a settlement agreement arrived at after mediation betweenImperial Oil, Alberta’s Director of the Environment and others. The Court held that the agreement was protected from disclosure becauseit was privileged.

However, in the alternative, it also held that four technical letters appended to the agreement were exempted fromdisclosure because they were technical information obtained by Imperial Oil from consultants that were provided in confidence and notnegotiated by the parties (at para. 84). [36] That information is quite different from the information before the adjudicator. She was dealing with the terms of theAgreement itself, which she found were the result of negotiation.

I note that the Alberta Court of Appeal stated at para. 82, “Therewould be room to argue that negotiated contracts themselves are not ‘supplied’ by either party to the agreement.” [37] In conclusion, the decision of the adjudicator fell within a reasonable range of outcomes, given the terms of the legislation andthe facts before her. Conclusion [38] For these reasons, the application for judicial review is dismissed. No party seeks costs. _______________________________ Swinton J. I agree _______________________________ Harvison Young J. I agree _______________________________ Thorburn J.

Released: March 17, 2017 CITATION: Toronto-Dominion Bank v. Ryerson University, 2017 ONSC 1507 DIVISIONAL COURT FILE NO.: 268/16 DATE: 20170317

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SWINTON, HARVISON YOUNG AND THORBURN JJ. BETWEEN: THE TORONTO-DOMINION BANK Applicant – and – RYERSON UNIVERSITY, JOHN DOE REQUESTER and INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO Respondents REASONS FOR JUDGMENT Swinton J. Released: March 17, 2017