Private companies entering into negotiations with Ontario
municipalities or other government-related
"institutions," such as electricity distributors or
hospitals, must be mindful that they might lose control over the
dissemination of their confidential business information.
Access to Information under MFIPPA
Municipal institutions have access to information obligations
under the Municipal Freedom of Information and Protection of
Privacy Act, RSO 1990, cM56 ("MFIPPA"). Generally, the
institution is require to provide a right of access to records
under its control unless an exemption in MFIPPA can be relied
Exemption to Access for Certain Commercial Information
MFIPPA requires the institution to maintain the confidentiality
of third party information, that is, the institution must refuse an
access to information request when commercial information is
"supplied" in confidence to the institution and
disclosure could reasonably be expected to prejudice the
company's competitive position, result in similar information
no longer being supplied to the institution where it is the public
interest for the institution to have it, result in undue loss or
gain, or reveal information regarding labour relations (the
The problem is that the Commercial Exemption is narrowly
construed by the Ontario Privacy Commissioner. A recent case from
the Divisional Court illustrates the Court will support the narrow
interpretation of the exemption, leading to the disclosure of
In Miller Transit Limited v Information and
Privacy Commissioner of Ontario et al, 2013 ONSC 7139
(CanLII), Miller Transit and York Region argued that a union
was not entitled to copies of parts of a contract for bus services
between Miller Transit and York Region. The Ontario Privacy
Commissioner disagreed and found that the information in the
contract was not supplied by Miller Transit. The Ontario Privacy
Commissioner took the position that the content of a contract with
a government institution and a third party is presumed to have been
generated in the give and take of negotiations, and not
"supplied" by the third party. The Divisional Court
upheld the decision of the Ontario Privacy Commissioner.
Miller Transit does not make new law, but serves as an
important reminder to private companies doing business with
municipalities and other institutions in Ontario.
Understandably, it is a coup for a private company to contract
with a municipal institution and the company might want to put all
hands on deck to secure the job. However, in the excitement of
trying to conclude a deal with an institution, it is wise to be
cognizant that the information you provide to the institution,
especially if it ends up in the contract, will ultimately get into
the hands of competitors.
Be cautious when responding to a Request for Proposals. In your
Response, you will often be required to provide a great deal of
confidential business information. Make clear statements in the
Response that you consider the information provided to be
confidential information assets, the disclosure of which will lead
to a competitive disadvantage for your company. If possible,
reserve your company's right to decide which portions of the
Response end up as part of the final contract. In light of the case
law, information which is quoted from an RFP Response straight into
the contractual language can be seen by the Privacy Commissioner as
having been "negotiated" as opposed to
"supplied," resulting in the information being accessible
to third parties through access to information requests.
Finally, remember that only "records" get disclosed.
If it is not in writing, it is not a record. If at all possible,
meet and have oral discussions with institutions for the purpose of
sharing confidential information that might land you the job. If
the information is not in writing, there will be nothing for the
institution to disclose when an access to information request is
made. While the notes taken by the representatives of the
institution can be accessed through access to information requests,
it is unlikely that notes will have the same strategic value to a
competitor as fulsome documents created by the company.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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