Old Port of Montréal Corporation Inc. (Re), 2025 OIC 28

Date: 2025-04-08
OIC file number: 5823-03467
Access request number: OPM-A-2023-001

Summary

The complainant alleged that the Old Port of Montréal Corporation Inc. (OPMC) had improperly withheld information under paragraph 18(b) (competitive position of government institutions or negotiations by government institutions), paragraph 18(d) (government financial interests or Government of Canada’s ability to manage the economy), subsection 19(1) (personal information), paragraph 20(1)(c) (financial impact on a third party) and paragraph 20(1)(d) (negotiations by a third party) of the Access to Information Act in response to an access request. The request was for information related to the requests for proposals (RFP) by invitation DDPI-510-22-1543 and DDPI-510-22-1545. The allegation falls under paragraph 30(1)(a) of the Act.

The OPMC did not show that the information met all of the requirements of paragraphs 18(b), 18(d), 20(1)(c) and 20(1)(d), and subsection 19(1). More specifically, the alleged harm is speculative in nature, and the names that were redacted under subsection 19(1) belonged to employees who received a document as part of their duties, and are subject to the exception at paragraph 3(j) of the Privacy Act.

The Information Commissioner ordered the OPMC to disclose the records in their entirety. The OPMC gave notice to the Commissioner that it would implement the order. The complaint is well founded.

Complaint

[1]        The complainant alleged that the Old Port of Montréal Corporation Inc. (OPMC) had improperly withheld information under paragraph 18(b) (competitive position of government institutions or negotiations by government institutions), paragraph 18(d) (government financial interests or Government of Canada’s ability to manage the economy), subsection 19(1) (personal information), paragraph 20(1)(c) (financial impact on a third party) and paragraph 20(1)(d) (negotiations by a third party) of the Access to Information Act in response to an access request. The request was for information related to the requests for proposals (RFP) by invitation DDPI-510-22-1543 and DDPI-510-22-1545. The allegation falls under paragraph 30(1)(a) of the Act.

Investigation

[2]      When an institution withholds information, including information related to third parties, the third parties and/or the institution bear the burden of showing that refusing to grant access is justified.

[3]        During the investigation, the Office of the Information Commissioner (OIC) considered all representations provided by the OPMC, including those not related to the analysis of the exemptions applied to the information.

[4]        The OIC also sought representations from third parties, which are companies, pursuant to paragraph 35(2)(c). In response, some third parties indicated that they thought the information did not meet the requirements of paragraphs 20(1)(c) and 20(1)(d). One of the third parties did not respond.

[5]        As required by section 36.3, I have notified the relevant third parties of my intention to order OPMC to disclose some of the information at issue. None of the third parties responded.

[6]        On November 7, 2024, the OPMC disclosed names and the word “amount,” which it had refused to disclose under paragraph 18(b), paragraph 18(d) and subsection 19(1) when it responded to the request. The OPMC continued to withhold other information under paragraphs 18(b), 18(d), 20(1)(c), 20(1)(d) and subsection 19(1).

[7]        The complainant informed the OIC that they were not satisfied with the supplementary disclosure.

Paragraph 18(b): Competitive position of government institution and negotiations by government institutions

[8]        Paragraph 18(b) allows institutions to refuse to disclose information that, if disclosed, could reasonably be expected to harm the competitive position or interfere with contractual or other negotiations of a government institution.

[9]        To claim this exemption with regard to competitive position, institutions must show the following:

• Disclosing the information could injure the competitive position of a government institution.
• There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[10]      To claim this exemption with regard to contractual or other negotiations, institutions must show the following:

• Contractual or other negotiations are under way or will be conducted in the future.
• Disclosing the information could interfere with the negotiations.
• There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[11]      When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[12]      Paragraph 18(b) was applied concurrently with paragraph 18(d), and sometimes with paragraphs 20(1)(c) and 20(1)(d), to the names of the companies, the amounts, as well as their rank and total score.

[13]      The OPMC explained that RFPs by invitation are not subject to the same rules as calls for tenders. Thus, when an institution requests proposals by invitation, there is no obligation to publish the contracts awarded, the amount awarded or the name of the provider. The OPMC added that, in these two RFPs by invitation, proponents were informed about the process, their rights and obligations, and how the evaluation would be done.

[14]      The OPMC added that it makes requests for proposals many times a year for various types of work of different scopes. The OPMC said it made one for another water meter repair after the RFP in 2022.

[15]      The OPMC believes that disclosing the names of companies that participate or not in this process could interfere with its free choice of who can participate. The OPMC argues that revealing the information on page 2, as well as the proposed rank and amounts, would allow proponents to change their prices in future RFPs, thus not reflecting an adequate and fair proposal. It added that this could lead to conflict and litigation, and an unwanted slowdown in work and operations for the OPMC, which would affect its financial interests.

[16]      The OPMC considers that there is a reasonable expectation that such harm could result from disclosure, as normally other proponents do not have access to this type of information.

[17]      The Supreme Court established that the accepted formulation for the alleged harm is “a reasonable expectation of probable harm.” The parties must demonstrate a clear and direct connection between the disclosure of the information and a risk of harm that is well beyond the merely possible, although the risk does not need to be proven on a balance of probabilities (Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras. 194-197).

[18]      Interference, in the context of paragraph 20(1)(d), which uses the same wording as paragraph 18(b), has been interpreted in the Courts as meaning “obstruction”, as outlined in the analysis of the application of paragraph 20(1)(d). Interference, in the context of paragraph 20(1)(d), has been interpreted in the Courts as meaning “obstruction” – as indicated by the corresponding word for interference in the French version, “entraver”. (see Blood Band v. Canada (Minister of Indian Affairs and Northern Development), 2003 FC 1397, para. 49; Canada (Information Commissioner) v. Canada (Minister of External Affairs), [1990] 3 F.C. 665 (F.C.T.D.), paras. 24-25).

 [19]     The representations provided by the OPMC do not establish how the RFP by invitation process constitutes negotiations, nor do they demonstrate how the disclosure of the information at issue would likely interfere with negotiations for this specific type of work. Moreover, the OPMC’s representations do not demonstrate how the disclosure of the information at issue would be likely, that is to say beyond a mere possibility, to allow an actual or potential competitor to harm its competitive position. Indeed, I find the alleged harms to be speculative in nature.

[20]      I conclude that the information does not meet the criteria of paragraph 18(b).

Paragraph 18(d): government financial interests or undue benefit to an individual

[21]      Paragraph 18(d) allows institutions to refuse to disclose information that, if disclosed, could reasonably be expected to materially harm their financial interests or the Government of Canada’s ability to manage the Canadian economy, or could unduly benefit someone.

[22]      To claim this exemption, institutions must then show the following:

• Disclosing the information (for example, details about Canada’s currency or a contemplated change in the bank rate, as set out in subparagraphs 18(i) to (vi)) could do one of the following:
  • materially harm a government institution’s financial or economic interests;
  • materially harm the Government of Canada’s ability to manage the economy of Canada; or
  • result in an individual or corporation receiving a larger than necessary, improper or unwarranted benefit.
• There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[23]      When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[24]      Paragraph 18(d) was applied concurrently with paragraph 18(b), and sometimes with paragraphs 20(1)(c) and 20(1)(d), to the names of the companies, the amounts, as well as their rank and total score.

[25]      According to the OPMC, the disclosure of this information would allow future proponents to modify their future proposals according to what they can see from other proposals, which would undermine its objective of obtaining optimal value for its projects through RFP. The OPMC adds that knowing others’ proposals can open the door to conflict and litigation. It claims that all this would have a material impact on its financial interests. Finally, according to the OPMC, some proponents may gain an undue benefit in knowing other proponents' prices and modify their prices accordingly in the future, either upwards or downwards, so they are more similar to what is on the market.

[26]      According to the OPMC, companies would benefit from knowing the list of companies that it invites in this type of RFP, and uninvited companies could try to argue that they have a right to bid with the Corporation, which could cause issues in future negotiations for this type of project.

[27]      Finally, the OPMC states that revealing the score would allow proponents to deduce by a simple rule of three, the value of the contract that was awarded by the OPMC, because proponents knew that the score was on 100 and only based on the price provided.

[28]      The OPMC considers that there is a reasonable expectation that such harm could result from disclosure, normally, other proponents do not have access to this type of information.

[29]      “Undue benefit” means more than necessary, improper or unwarranted. 

[30]      The Supreme Court established that the accepted formulation for the alleged harm is “a reasonable expectation of probable harm.” The parties must demonstrate a clear and direct connection between the disclosure of the information and a risk of harm that is well beyond the merely possible, although the risk does not need to be proven on a balance of probabilities (Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras. 194-197).

[31]      The representations provided by the OPMC do not establish that the disclosure of the information would materially harm its financial or economic interests, nor that it would result in a person or company receiving an advantage that is greater than necessary, improper or unwarranted. Indeed, I find the alleged harms to be speculative in nature.

[32]      I conclude that the information does not meet the requirements of paragraph 18(d).

Subsection 19(1): personal information

[33]      Subsection 19(1) requires institutions to refuse to disclose personal information.

[34]      To claim this exemption, institutions must then show the following:

• The information is about an individual—that is, a human being, not a corporation.
• There is a serious possibility that disclosing the information would identify that individual.
• The information does not fall under one of the exceptions to the definition of “personal information” set out in paragraphs 3(j) to 3(m) of the Privacy Act (for example, business contact information for public servants).

[35]      When these requirements are met, institutions must then consider whether the following circumstances (listed in subsection 19(2)) exist:

• The person to whom the information relates consents to its disclosure.
• The information is publicly available.
• Disclosure of the information would be consistent with section 8 of the Privacy Act.

[36]      When one or more of these circumstances exist, subsection 19(2) of the Access to Information Act requires institutions to reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[37]      The OPMC applied subsection 19(1) to the names of individuals.

I accept that names are information about individuals that can identify them.

[38]      During the investigation, the OPMC confirmed that these are the names of current or former employees. The OPMC specified that the redacted names are the names of individuals who received, but did not prepare, the document. It argued that the information does not fall under one of the exceptions to the definition of “personal information” set out in paragraphs 3(j) to 3(m) of the Privacy Act.

[39]      As the OPMC is a government institution within the meaning of section 3 of the Privacy Act, I am of the opinion that redacted names are subject to the exception at paragraph 3(j) of the Privacy Act. The Privacy Commissioner, whom the OIC consulted pursuant to paragraph 35(2)(d), agrees that these exceptions apply to any current or former employee, irrespective of whether or not they prepared the document. As these are the names of employees of the OPMC who received the documents as part of their duties, these names are subject to the exception at paragraph 3(j) of the Privacy Act, which states that information about an individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual is excluded from the definition of “personal information” within the meaning of section 19 of the Access to Information Act.

[40]      I conclude that the information does not meet the requirements of subsection 19(1).

Paragraph 20(1)(c): financial impact on a third party

[41]      Paragraph 20(1)(c) requires institutions to refuse to disclose information that, if disclosed, could reasonably be expected to have a material financial impact on a third party (that is, a private company or individual, but not the person who made the access request) or harm its competitive position.

[42]      To claim this exemption with regard to financial impact on a third party, institutions must show the following:

• Disclosing the information could result in material financial loss or gain to the third party.
• There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[43]      To claim this exemption with regard to competitive position, institutions must show the following:

• Disclosing the information could injure the competitive position of the third party.
• There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[44]      When these requirements are met, and the third party to whom the information relates consents to its disclosure, subsection 20(5) requires institutions to reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[45]      The OPMC applied paragraph 20(1)(c) concurrently with paragraph 20(1)(d) to withhold the names of the third parties and the amounts proposed by those third parties in relation to the RFPs by invitation DDPI-510-22-1543 for the public square development project 2 and DDPI-510-22-1545 for the water meter chamber repair project.

[46]      The OPMC states that, if the information is disclosed, contractors’ pricing could be influenced in future RFPs. According to the OPMC, companies that know the market prices will inevitably use this information in order to better position themselves when opportunities arise for contracts of this kind in the future. This information will be used in one way or another to adjust the way the company does business and submits bids in the future. This would have a material impact on third-party profits and losses and could likely undermine the competitiveness that exists between companies operating in the same field.

[47]      Moreover, given that it requests proposals many times a year, the OPMC believes there is a real and potential risk that the information obtained could cause the harms described.

[48]      However, the third parties that provided representations indicated that disclosure would not affect their finances or competitive position, nor harm them in any way.

[49]      The burden of establishing that the requirements of paragraph 20(1)(c) are met includes a burden of proof that cannot be met by mere assertions that disclosure would likely or undoubtedly result in alleged harm. Representations that are vague or speculative are insufficient to establish a reasonable expectation of probable harm. What is required is specific evidence that there is a reasonable expectation of the described outcome (see: Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras 194-6, 206).

[50]      Neither party has demonstrated that there is a reasonable expectation that disclosure of the information would result in material financial loss or gain for any third party or harm its competitive position.

[51]      I conclude that the information does not meet the requirements of paragraph 20(1)(c).

Paragraph 20(1)(d): negotiations by a third party

[52]      Paragraph 20(1)(d) requires institutions to refuse to disclose information that, if disclosed, could reasonably be expected to interfere with the contractual or other negotiations of a third party (that is, a private company or individual, but not the person who made the access request).

[53]      To claim this exemption, institutions must then show the following:

• A third party is or will be conducting contractual or other negotiations.
• Disclosing the information could interfere with those negotiations.
• There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[54]      When these requirements are met, and the third party to whom the information relates consents to its disclosure, subsection 20(5) requires institutions to reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[55]      The OPMC applied paragraph 20(1)(d) concurrently with paragraph 20(1)(c) to withhold the names of the third parties and the amounts proposed by those third parties in relation to the RFPs by invitation DDPI-510-22-1543 for the public square development project 2 and DDPI-510-22-1545 for the water meter chamber repair project.

[56]      The OPMC explained that it requests proposals many times a year for projects of different scopes, and that some of these companies are invited again to submit a proposal. According to the OPMC, disclosing this information would likely affect how a company submits its proposals, as the proposals would not be based on the optimal value to be received, but could be unfair, resulting in an advantage for a company with knowledge of this information.

[57]      However, the third parties that provided representations indicated that disclosure of the information would not prejudice specific negotiations in relation to the project nor any other project that they anticipated would require negotiations.

[58]      This exemption, like the other injury-based exemptions in the Act, requires a clear and direct connection between the disclosure of specific information and a risk of harm that is well beyond the merely possible or speculative (Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras. 195, 197, 206).

[59]      Evidence must be provided with respect to actual or reasonably anticipated contractual or other negotiations, other than ordinary daily business operations (131 Queen Street Limited v. Canada (Attorney General), 2007 FC 347, para 42; Burnbrae Farms Limited v. Canada (Canadian Food Inspection Agency), 2014 FC 957, para 125). Moreover, the interference with the negotiations must be of the nature of an obstruction to the negotiations in question and not merely of an intensification of competition (Canada Post Corporation v. National Capital Commission, 2002 FCT 700, para 18).

[60]      None of the parties has demonstrated that there is a reasonable expectation that disclosure of the information would interfere with specific negotiations.

[61]      I conclude that the information does not meet the requirements of paragraph 20(1)(d).

Outcome

[62]      The complaint is well founded because the information that the OPMC withheld under paragraphs 18(b), 18(d), 20(1)(c), 20(1)(d) and subsection 19(1) does not meet the requirements for the exemptions.

Order

I intend to order the President and Chief Executive Officer of the Old Port of Montréal Corporation Inc. to disclose all information. 

Initial report and notice from institution

On February 27, 2025, I issued my initial report to the President and Chief Executive Officer setting out my order.

On March 27, 2025, the Assistant Secretary General and Manager, Legal Services gave  me notice that, while the OPMC maintains its position as set out in its representations, it would be implementing my order.

Review by Federal Court

When an allegation in a complaint falls under paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant has the right to apply to the Federal Court for a review. When the Information Commissioner makes an order(s), the institution also has the right to apply for a review. The complainant and/or institution must apply for a review within 35 business days after the date of this report. When they do not, third parties and the Privacy Commissioner may apply for a review within the next 10 business days. Whoever applies for a review must serve a copy of the application for review to the relevant parties, as per section 43. If no one applies for a review by these deadlines, the order(s) takes effect on the 46th business day after the date of this report.

Other recipients of final report

As required by subsection 37(2), this report was provided to the two third parties that provided representations and to the Privacy Commissioner of Canada.