Public Services and Procurement Canada (Re), 2025 OIC 50

Date: 2025-09-29
OIC file number: 5822-07644
Access request number: A-2020-00374 / RM1

Summary

The complainant alleged that Public Services and Procurement Canada (PSPC) had improperly withheld information under paragraph 18(d) (government financial interests, undue benefit to an individual), subsection 19(1) (personal information), paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information), paragraph 20(1)(c) (financial impact on a third party), paragraph 20(1)(d) (negotiations by a third party) and paragraph 21(1)(b) (accounts of consultations or deliberation) of the Access to Information Act in response to an access request. The request was for financial statements for the leaseback of seven specific buildings. The allegation falls under paragraph 30(1)(a) of the Act.

PSPC could not show that it met all the requirements of these exemptions, particularly in light of the information relating to the spending of significant public funds. The Information Commissioner ordered that PSPC disclose the information at issue. PSPC gave notice to the Commissioner that it would comply with the order. The complaint is well founded.

Complaint

[1] The complainant alleged that Public Services and Procurement Canada (PSPC) had improperly withheld information under paragraph 18(d) (government financial interests, undue benefit to an individual), subsection 19(1) (personal information), paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information), paragraph 20(1)(c) (financial impact on a third party), paragraph 20(1)(d) (negotiations by a third party) and paragraph 21(1)(b) (accounts of consultations or deliberation) of the Access to Information Act in response to an access request. The request was for financial statements for the leaseback of the following buildings:

Canada Place, 9700 Jasper Avenue NW, Edmonton;
Harry Hays Building, 220 4 Avenue SE, Calgary;
The Joseph Shepard Building, 4900 Yonge Street, Toronto;
Thomas D’Arcy McGee Building, 90 Sparks Street, Ottawa;
Skyline Complex, 1400 Merivale Road, Ottawa;
RCMP Divisional Headquarters, 4225 Dorchester Boulevard, Westmount;
CRA Tax Services Office, 305 René-Lévesque West, Montreal.

[2] The allegation falls under paragraph 30(1)(a) of the Act.

[3] During the investigation, the complainant decided it was no longer necessary for the Office of the Information Commissioner (OIC) to investigate the application of subsection 19(1) or the withholding of the following information within municipal tax invoices: banking information, account numbers, access codes and PINs.

Investigation

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

[5] The OIC sought and received representations from Canadian Leaseback (GP) Inc. (Canadian Leaseback) and Maple Leaf Property Management (MLPM) pursuant to paragraph 35(2)(c). The OIC also sent notice to the third parties pursuant to section 36.3 of the Act, but received no response.

[6] The third parties raised that some personal information should have been withheld under subsection 19(1), rather than third-party exemptions, where salary amounts were withheld in an audit report and they are clearly tied to positions of identifiable individuals. Since the complainant indicated personal information is not of interest, and such information meets the requirements of subsection 19(1), I consider this information to be outside of the scope of the complaint.

[7] I note that the third parties also raised that certain records are not responsive to the request and should not be at issue. The case law supports that institutions should not interpret access requests narrowly. Once a response has been issued to an access request, there are no exemptions that can be argued on the basis of the relevancy of the records (see: AstraZeneca Canada Inc. v. Canada (Minister of Health), 2005 FC 189 at paras 59-61; Canadian Pacific Hotels Corp. v. Canada (Attorney General), 2004 FC 444 at paras 25-31). The Treasury Board of Canada Secretariat’s Access to Information Manual (TBS Manual) also states that “a lack of relevance to the request is not grounds for exemption under the Act”. Consequently, I considered the application of exemptions to all records withheld by PSPC in its response.

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

[8] 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.

[9] To claim this exemption, institutions must 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.

[10] 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?

[11] PSPC applied paragraph 18(d) to withhold the following types of information, concurrently with paragraphs 20(1)(b), 20(1)(c) and 20(1)(d):

Portions of reports from accounting firms hired by PSPC; and
Portions of reports of audits carried out by PSPC, including the auditor’s findings on discrepancies and concerns.

[12] PSPC asserted that disclosure would materially harm government financial interests, materially harm the Government of Canada’s ability to manage the economy and provide third parties with an unfair advantage in negotiating future leases with the government.

[13] I find PSPC’s representations are insufficient to demonstrate disclosure could reasonably result in material harm of this kind. Although the term “material” is not defined in the Act, the courts have held that this term means “substantial” or “important” (see: Burns Meats Ltd. v. Canada (Minister of Agriculture) (1987), 14 F.T.R. 137; Matol Botanical International Inc. v. Canada (Minister of National Health and Welfare), [1994] FCJ No. 860). PSPC has made no attempt to quantify the harm it is claiming would result from disclosure.

[14] PSPC has also failed to establish how disclosure could materially harm the Government of Canada’s ability to manage the economy. PSPC asserted that:

The government have announced that they will sell some buildings making them more vulnerable in this situation. The landlords could reasonably interpret this information as an opportunity to demand higher rent, knowing that the tenant may be more inclined to accept their terms.

[15] The description of paragraph 18(d) in the TBS Manual, detailed below, supports my view that the types of information at issue here are not the types covered by this exemption.

[16] An “undue benefit” is not defined in the Act, but is described in the TBS Manual as meaning “more than necessary, improper or unwarranted”, and includes the examples of “an increase of revenue, an improvement of corporate reputation or a gain of goodwill”.

[17] PSPC asserted that “disclosure of specific financial details or strategic decisions could provide actionable information that competitors or private parties could use to harm the government’s financial position” and “place the institution in a significant disadvantage in negotiations, especially with the future landlords who could use that information to their own advantage”. I find PSPC’s representations on this point to be entirely speculative.

[18] As with other harm-based exemptions, the parties must demonstrate a clear and direct connection between the disclosure of specific information and a risk of harm well beyond the merely possible (see: Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras. 197, 206 (Merck Frosst)). PSPC has not done so in this case.

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

Paragraph 20(1)(b): confidential third-party financial, commercial, scientific or technical information

[20] Paragraph 20(1)(b) requires institutions to refuse to disclose confidential financial, commercial, scientific or technical information provided to a government institution by a third party (that is, a private company or individual, but not the person who made the access request).

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

The information is financial, commercial, scientific or technical.
The information is confidential.
The third party supplied the information to a government institution.
The third party has consistently treated the information as confidential.

Does the information meet the requirements of the exemption?

[22] PSPC applied paragraph 20(1)(b) to withhold the following types of information, concurrently with paragraphs 20(1)(c) and 20(1)(d), and in some cases with paragraph 18(d):

Financial figures such as Total Rent, Property Taxes, tenant operating costs, concurrently withheld under paragraph 18(d);
Summaries of planned repairs;
Property tax invoices;
Invoices from other third parties addressed to Canadian Leaseback or MLPM (third-party invoices);
Portions of letters and emails exchanged between PSPC and MLPM; and
Audit reports, drafted by both the government and third-party auditors, including the auditors’ findings on discrepancies/concerns.

[23] Where third parties have supplied invoices to Canadian Leaseback or MLPM, which were then provided to PSPC, I accept that this information is financial, commercial and/or technical in nature, and that disclosure of these third-party invoices would generally reveal the relationship between the parties, which is commercial information. I find this is not the case, however, with property tax invoices, which do not relate to any commercial relationship between a municipality and the taxpayer.

[24] In their representations, the third parties also identified some classes of information I accept fall within the meaning of financial, commercial, scientific or technical information. I find that the following types of information meet the first requirement of the exemption:

Portions of leases that disclose financial terms;
Rent details;
Purchase option terms; and
Statements of recoverable operating costs which could reasonably be used to calculate rent payments or other financial information.

[25] The parties have not established how this requirement is met for the balance of the information, including:

The nature of planned repairs (for example, as withheld on pages 28-29);
Invoice headers and dates on invoices from MLPM and Canadian Leaseback to PSPC (for example, as withheld on pages 64, 70-71, 73, 75); and
Findings of the auditors that do not reveal financial or commercial information (for example, as withheld on pages 10, 14-15, 19-20, 22, 26-27, 32, 84-86, 114-118).

[26] The second requirement of paragraph 20(1)(b) is that the information be confidential by an objective standard. As a result, a party claiming that information is confidential under paragraph 20(1)(b) must establish that each of the following conditions are met:

the content of the record is not available from sources otherwise accessible to the public or obtainable by observation or independent study by a member of the public acting on their own;
the information originates and is communicated in a reasonable expectation of confidence that it will not be disclosed; and
the information, whether provided by law or supplied voluntarily, be communicated in a relationship between government and the third party that is either a fiduciary relationship or one that is not contrary to the public interest, and that will be fostered for the public benefit by confidential communication. (see Air Atonabee Ltd. v. Canada (Minister of Transport), (1989) 27 FTR 194 (F.C.T.D.); see also: Merck Frosst, para. 133).

[27] None of the information at issue appears to be in the public domain, apart from the property tax invoices. Such invoices are available through the municipalities and consequently do not meet this condition.

[28] With respect to the third-party invoices, since these parties were dealing with Canadian Leaseback or MLPM, rather than directly with the government, these third parties likely had a reasonable expectation that their invoices would not be disclosed. Consequently, I accept that the third-party invoices meet the requirements of objective confidentiality.

[29] For the balance of the information, I find that the parties have not established the second part of the objective confidentiality test is met. Although the third parties and PSPC have asserted that the information at issue cannot be disclosed based on the confidentiality provision in the relevant agreements, any such confidentiality provision, on its own, is not determinative of objective confidentiality. Although such provisions can be taken into account, neither PSPC nor the third party provided the OIC with a copy of any of the relevant agreements or the wording of the confidentiality clause.

[30] The third parties and PSPC also asserted that operating costs are objectively confidential by virtue of being commercially sensitive. The parties provided only general statements about how this is the case, which I find insufficient to establish this condition is met.

[31] Turning to the last condition of objective confidentiality, the third parties did not make representations explaining how the relationship between Canadian Leaseback or MLPM and PSPC will be fostered for the public benefit by confidential communication of the information. PSPC asserted that, because some of the government of Canada tenants in these buildings have special security requirements, disclosure could risk harming the relationship with the third parties to the detriment of public safety. PSPC also asserted that confidentiality ensures that third parties share “sensitive information” with the government and “encourages innovation and effective partnerships between the private and public sectors”. With respect, the third parties shared the information at issue as required by its contractual obligations. I am not persuaded that disclosure would make these third parties less willing to share such information moving forward, or that the third parties would refuse to maintain essential safety systems for its tenant if this information is disclosed. Such arguments seem to be entirely speculative.

[32] With respect to the third-party invoices, however, I am satisfied that their confidential communication fosters the relationship between the third parties and PSPC for the public benefit. The disclosure of the costs passed on to the government found within Canadian Leaseback and MLPM’s records would serve the public interest in transparency, whereas releasing third parties’ commercial relationships with its suppliers risks negatively impacting this relationship with government, with no clear added public benefit.

[33] Neither PSPC nor the third parties have established that the requirements of objective confidentiality are met for any of the information, other than the third-party invoices.

[34] Although much of the information was clearly supplied by third parties to PSPC, the parties have not demonstrated that this third requirement of paragraph 20(1)(b) is met for certain portions of the withheld information. The case law under the Act does not support that negotiated terms constitute information that is supplied by a third party (see: Canada Post Corp. v. National Capital Commission, 2002 FCT 700, para. 14; see also: Halifax Developments Ltd. v. Canada (Minister of Public Works and Government Services), [1994] FCJ No. 2035, 1994 CarswellNat 3178 (FCT)). Consequently, information such as rates and terms agreed upon by PSPC and third parties does not meet this requirement.

[35] The third parties made no representations on this point. PSPC indicated in its representations that some of the withheld information is information agreed upon between PSPC and the third parties, including pricing, contractual terms and who would pay certain expenses. I find that such information does not meet the third requirement of paragraph 20(1)(b).

[36] Turning to the final requirement of the exemption, based on the representations made by Canadian Leaseback and MLPM, I am satisfied that the third parties have consistently treated the withheld information as confidential.

[37] I conclude that the information does not meet the requirements of paragraph 20(1)(b), except for the third-party invoices.

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

[38] 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.

[39] 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.

[40] 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 prejudice could occur—that is, the expectation is well beyond a mere possibility.

Does the information meet the requirements of the exemption?

[41] PSPC applied paragraph 20(1)(c) to withhold the following types of information, concurrently with paragraphs 20(1)(b) and 20(1)(d), and in some cases with paragraph 18(d):

Financial figures such as Total Rent, Property Taxes, tenant operating costs, concurrently withheld under paragraph 18(d);
Summaries of planned repairs;
Property tax invoices;
Third-party invoices;
Portions of letters and emails exchanged between PSPC and MLPM; and
Portions of audit reports, including the auditor’s findings on discrepancies/concerns.

[42] The third parties did not identify any harm that could result from disclosure relevant to paragraph 20(1)(c). Rather, the third parties simply cited relevant principles from Merck Frosst, without explaining the relevance to this particular situation.

[43] PSPC asserted that:

disclosure “could allow competitors to assess the profits made by the third party and adjust their offers to meet the tenant requirements at more competitive prices”;
that disclosure “could affect the sale price or negotiations with future buyers” if the third party decides to sell the buildings;
harm “could occur if the disclosure of certain business details, such as contractual terms, prices, directly affected the third party’s financial results or ability to remain competitive in the market”;
“competitors could gain insight into the third party’s pricing structure or business strategy, which could allow them to compete more effectively or exploit weaknesses. This could lead to financial loss or an undue competitive advantage for others, especially if the third party relies on this confidential information to maintain its competitive edge”; and
disclosure “could give competitors leverage to adjust their pricing or operations in ways that harm the third party’s market position or financial stability”.

[44] I find PSPC’s representations to be entirely speculative and backed by no real evidence.

[45] Paragraph 20(1)(c) requires evidence showing the financial impact disclosing the information would have on a third party and its competitive position, and how likely that impact would be. The parties must demonstrate a clear and direct connection between the disclosure of specific information and a risk of harm well beyond the merely possible (see: Merck Frosst, paras. 197, 206).

[46] Although the third parties indicated that the information at issue should be withheld under paragraph 20(1)(c), neither PSPC nor the third parties have provided representations and evidence beyond speculation demonstrating that disclosing the withheld information could reasonably be expected to result in material financial loss or injury to the competitive position of a third party.

[47] In Canadian Pacific Hotels Corp. v. Canada (Attorney General), 2004 FC 444 at para 35, the Federal Court found that “a more competitive environment does not give rise to a reasonable expectation of a material financial loss or a prejudice to the Applicant's competitive position within the meaning of [paragraph] 20(1)(c)”. The parties have not met their burden of demonstrating that the harm here could be anything beyond heightened competition.

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

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

[49] 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).

[50] To claim this exemption, institutions must 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.

Does the information meet the requirements of the exemption?

[51] PSPC applied paragraph 20(1)(d) to withhold the following types of information, concurrently with paragraphs 20(1)(b) and 20(1)(c), and in some cases with paragraph 18(d):

Financial figures such as Total Rent, Property Taxes, tenant operating costs, concurrently withheld under paragraph 18(d);
Summaries of planned repairs;
Property tax invoices;
Third-party invoices;
Portions of letters and emails exchanged between PSPC and MLPM; and
Portions of audit reports, including the auditor’s findings on discrepancies/concerns.

[52] The third parties identified certain types of negotiations that they assert would be impacted by the disclosure of the information: discussions on lease renewals, property sales or acquisitions and project delivery and services tendering inside or outside of the sale leaseback portfolio. I accept that the parties have identified relevant negotiations.

[53] 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).

[54] Neither PSPC nor the third parties have provided sufficient representations to demonstrate how disclosure of the information at issue could reasonably be expected to interfere with the negotiations identified by the third parties. The parties’ representations do not go beyond general statements and speculation.

[55] Given the government leases a large amount of office space compared to other tenants, it seems unlikely that disclosure of the details at issue here could directly interfere with MLPM and Canadian Leaseback’s negotiations with parties outside of government. The third parties provided no evidence that it is currently or foreseeably going to be in negotiations for leases compatible in scale to the ones at issue. The third parties and PSPC failed to address this despite the OIC seeking their representations on this point.

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

Paragraph 21(1)(b): accounts of consultations or deliberations

[57] Paragraph 21(1)(b) allows institutions to refuse to disclose accounts of consultations or deliberations in which government employees, ministers or members of a minister’s staff took part.

[58] To qualify for exemption under paragraph 21(1)(b), the records that contain the information must have been created less than 20 years before the access request was made.

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

The information is an account—that is, a report or a description.
The account is of consultations or deliberations.
At least one of an institution’s directors, officers or employees, a minister or a member of a minister’s staff was involved in the consultations or deliberations.

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

[61] However, subsection 21(2) specifically prohibits institutions from using paragraph 21(1)(b) to refuse to disclose the following:

records that contain reasons for or accounts of decisions that affect the rights of a person made by institutions when exercising discretionary powers or carrying out adjudicative functions; and
reports prepared by consultants or advisers who were not directors, officers or employees of an institution or members of a minister’s staff at the time.

Does the information meet the requirements of the exemption?

[62] PSPC applied paragraph 21(1)(b) on pages 2891-2892 and 3137-3138 to letters from PSPC to Canadian Leaseback regarding issues with audited statements.

[63] These letters do not reveal the nature of any deliberations, rather they outline PSPC’s final position. Although the letters involve public servants and were created less than 20 years before the request was made, for the reasons that follow, PSPC has not demonstrated that the other requirements of paragraph 21(1)(b) are met.

[64] PSPC asserted that disclosure of these letters would reveal the details of consultations and deliberations. The information withheld on these pages, however, consists of factual summaries of the parties’ positions on the issues discussed in the letters and quotations of provisions from the relevant lease agreement. The withheld information does not purport to describe any consultations undertaken, any deliberations held, any advice provided or any exchange of views leading to a particular decision.

[65] I conclude that the information does not meet the requirements of paragraph 21(1)(b).

Outcome

[66] The complaint is well founded.

Orders

I order the Minister of Public Works and Government Services to do the following:

Disclose the information withheld under paragraph 18(d), other than where subsection 19(1) was applied concurrently to the same information;
Disclose the information withheld under paragraphs 20(1)(b), 20(1)(c) and 20(1)(d), other than the non-municipal invoices from third parties addressed to Canadian Leaseback or MLPM or where subsection 19(1) was applied concurrently to the same information;
Disclose the information withheld under paragraph 21(1)(b) on pages 2891-2892 and 3137-3138.

Initial report and notice from institution

On August 4, 2025, I issued my initial report to the Minister of Public Works and Government Services setting out my orders.

On September 4, 2025, PSPC’s Senior Director, Access to Information, Privacy and Governance gave me notice that PSPC would be implementing the orders.

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 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 Canadian Leaseback and MLPM.