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ACCESS TO INFORMATION AND PRIVACY - Access to information – Legislation – Provincial and territorial – Right to Information – Requests for disclosure – Bars and grounds for refusal – Confidential information

Tuesday, April 25, 2017 @ 8:30 AM  

Lexis Advance® Quicklaw®
Application by the Toronto-Dominion Bank (Bank) for judicial review to quash an order by the Information and Privacy Commissioner of Ontario (IPC), which ordered disclosure of a contract between the Bank and Ryerson University (University). The parties concluded an Affinity Agreement (Agreement) whereby the Bank promoted certain financial service products to the University's alumni, staff and students, and in return the University received compensation. The University received a request for the disclosure of the Agreement pursuant to the Freedom of Information and Protection of Privacy Act (Act), to which the University was subject. The Bank took the position that the market for affinity arrangements was very competitive, and the information in the Agreement was confidential commercial information that was competitively sensitive. The Bank submitted that the Agreement should not be disclosed because it was exempted third party information under s. 17(1) of the Act. The University decided that the Agreement should be disclosed, with the exception of a Schedule that contained commercial and financial information that had been disclosed in confidence. On appeal, the IPC adjudicator rejected the Bank’s arguments, finding that the commercial information was not supplied in confidence to the University. The Bank submitted that the adjudicator reached an unreasonable decision.

HELD: Application dismissed. The decision of the adjudicator was reasonable. The decision of the adjudicator fell within a reasonable range of outcomes, given the terms of the legislation and the facts before her. Given that some of the terms were changed in the Agreement and given that the Agreement was the result of contractual negotiations, it was reasonable for the adjudicator to conclude that the Agreement was not supplied in confidence. The adjudicator's approach was consistent with past decisions of the IPC that had been upheld on judicial review, as well as with the approach to information in contracts adopted in other jurisdictions. In addition, the adjudicator's approach was consistent with the purpose of the Act, namely that information in the control of governmental institutions should be available to the public and exemptions should be limited and specific.

Toronto-Dominion Bank v. Ryerson University, [2017] O.J. No. 1361, Ontario Superior Court of Justice - Divisional Court, K.E. Swinton, A.L. Harvison Young and J.A. Thorburn JJ., March 17, 2017. TLD-Apr242017004