Public Services and Procurement Canada (Re), 2026 OIC 31

Date: 2026-03-11
OIC file number: 5821-07447
Access request number: A-2021-00478

Summary

The complainant alleged that Public Services and Procurement Canada (PSPC) improperly withheld information under paragraph 18(b) (competitive position of government institutions or negotiations by government institutions) and paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) of the Access to Information Act in response to an access request. The request was for information on leases signed by PSPC that amount to over $500,000 per year for the years 2018-2022 in specific cities: Gatineau/Ottawa, Quebec, Montreal and Lacolle. This allegation falls under paragraph 30(1)(a) of the Act.

Neither PSPC nor the third parties established that the requirements of the exemptions were met. The requirements of paragraph 20(1)(b) were not met because the rent amounts were not established to have been “supplied by” the third parties, and the representations on the harm-based exemptions were too speculative to support a link between disclosure and a reasonable expectation of harm.

The Information Commissioner ordered that PSPC disclose the records in full. 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) improperly withheld information under paragraph 18(b) (competitive position of government institutions or negotiations by government institutions) and paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) of the Access to Information Act in response to an access request. The request was for information on leases signed by PSPC that amount to over $500,000 per year for the years 2018-2022 in specific cities: Gatineau/Ottawa, Quebec, Montreal and Lacolle. This allegation falls under paragraph 30(1)(a) of the Act.

Investigation

[2]When an institution withholds 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]The Office of the Information Commissioner (OIC) sought representations from all 22 third parties named in the records. The following third parties made representations during the investigation:

HOOPP Realty Inc;
Société en Commandite Promenade du Portage;
Centrale des Syndicats du Québec;
Lord Realty (Quebec) Limited Partnership;
Montclair Boulevard Property Limited;
Newvest Realty Corporation;
22 Varennes Regional Inc;
1600 René-Lévesque Ltée; and
Les Cours Pointe St-Charles Inc.

[4]All but one of the responding third parties opposed disclosure and provided representations as to why they assert the information should not be disclosed.

[5]1600 René-Lévesque Ltée indicated that it would not agree to disclose the information as they were not the owners of the property at issue during the requested timeframe. HOOPP Realty Inc, Montclair Boulevard Property Limited, 22 Varennes Regional Inc., and Les Cours Pointe St-Charles Inc. submitted that paragraphs 20(1)(c) and/or 20(1)(d) should be applied to the information, in concurrence with paragraph 20(1)(b).

[6]While the OIC made reasonable efforts to reach all third parties, the remaining third parties did not provide representations.

Paragraph 18(b): competitive position of government institutions or negotiations by government institutions

[7]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.

[8]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.

[9]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.

[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]Paragraph 18(b) was applied, in concurrence with paragraph 20(1)(b), to the values in the Annual Rent column of a table created to respond to the request.

[12]PSPC asserted that disclosing annual rent figures would have a negative impact on its competitive position in the future. It added that putting PSPC in the position of having to negotiate leases where the landlords are aware of the details in all past and current agreements, but where PSPC is not aware of any of the landlord’s business information, would clearly disadvantage the institution. It also represented that disclosure would affect its ability to negotiate in the future. I accept that negotiations could be conducted in the future for lease renewals or other agreements of the sort. For the reasons that follow, however, I find PSPC has not demonstrated that disclosure could reasonably be expected to interfere with such negotiations.

[13]PSPC indicated that it, in order to ensure fair negotiations, it does not disclose annual rent figures associated with its lease agreements. The institution alleged that the practice of withholding lease amounts is standard in the commercial leasing industry and that, while an express confidentiality clause is not included in PSPC’s existing agreements, certain lease details (including lease rates) are implied to not be public in nature.

[14]The institution also asserted that disclosing the information could have an impact on its finances and its operations, as publishing lease amounts could create a precedent that, if it becomes general practice, could have a negative impact on the government’s capacity to manage public funds. PSPC also alleged that the total prices of the lease, combined with the surface area of the rental unit, would allow one to calculate the price per square foot. However, it did not explain how information on the square footage of these spaces is easily accessible, and it appears that lease rates are not a straight dollar amount per square foot.

[15]With respect to the likelihood that a harm could occur, PSPC indicated that harm is likely, as rental rate details would negatively affect not only renegotiations of leases, which need to be renegotiated every few years, but all peripheral negotiations.

[16]The Supreme Court of Canada has established that the accepted formulation with respect to an alleged prejudice is a “reasonable expectation of probable harm”. While the parties need not show on a balance of probabilities that the harm will in fact come to pass if the records are disclosed, the parties must nonetheless do more than show that such harm is simply possible (Merck Frosst Canada Ltd. v Canada (Health), 2012 SCC 3 at paras 194-197 (Merck Frosst)).

[17]I am of the view that the representations provided by PSPC do not sufficiently explain how there is a reasonable expectation that harm could occur should the information be disclosed. It is unclear how the disclosure of the specific annual rent figures could cause harm beyond a mere possibility.

[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 at paras 197, 206). PSPC has not done so in this case, as I find its representations on this point to be entirely speculative.

[19]As such, I conclude that the information does not meet the requirements of paragraph 18(b) and that there is no need to examine whether PSPC reasonably exercised its discretion to decide whether to disclose the information.

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.

[22]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?

[23]PSPC applied paragraph 20(1)(b) to withhold the values in the Annual Rent column of a table created to respond to the request. It did not consult any of the third parties listed in the records during the processing of the request.

[24]Paragraph 20(1)(b) requires evidence explaining how the information currently withheld consists of confidential financial, commercial, scientific or technical information supplied to the government of Canada by a third party, and which demonstrates that this third party has consistently treated the information as confidential.

[25]With respect to the first requirement of paragraph 20(1)(b), I conclude that the information about annual rent figures falls within the definition of financial or commercial information, so as to meet the first requirement for exemption under paragraph 20(1)(b).

[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:

(1) The information contained in the record is not available from other sources in the public domain or obtainable by observation or independent study by a member of the public acting on his or her own;

(2) the circumstances in which the information originates and is communicated give rise to a reasonable expectation that it will not be disclosed;

(3) the information, whether provided by law or supplied voluntarily, is communicated to the government within a relationship that is either fiduciary or not contrary to the public interest and that will be fostered for the public benefit by confidential communication. (see: Merck Frosst at para. 133).

[27]With respect to the first condition for confidentiality, that the information is not publicly available, I find that the requirement is met.

[28]Regarding the second part of the confidentiality test which relates to a reasonable expectation of confidentiality, PSPC indicated that its existing lease agreements include language that confirms that landlords agree to disclosure of some sensitive information such as the building address, name of landlord, leased area, commencement date, termination date and renewal options. PSPC added that while an express confidentiality clause is not included in existing agreements, other lease details (including lease rates) are implied not to be public in nature.

[29]The third parties asserted that confidentiality is crucial, as the disclosure of the annual rent figures would affect the parties’ respective ability to negotiate favourable terms in future contracts. They added that the need to ensure confidentiality of such information lies in the fact that public knowledge of it would clearly confer an undue commercial advantage to current and potential tenants of the building, in that the latter would hold important privileged information when negotiating new leases or their renewal. It would also affect its competitive ability against other potential contractors. Neither PSPC nor any of the third parties provided a copy of one of the relevant lease agreements, nor an excerpt of the disclosure clause.

[30]The parties’ representations confirmed that there was no confidentiality provision written into the agreements with respect to annual rent figures. The type of disclosure clause that was included, as explained by PSPC, fails to establish that other information within the agreement is objectively confidential. While a landlord and tenant can agree that certain identified information can be disclosed, it does not follow that everything else cannot be disclosed.

[31]The courts have found that very similar information such as annual rent figures involving the government were not objectively confidential, and that a third party could not reasonably expect the amount of a contract to remain confidential once a bid was accepted by the government (see: Canada (Minister of Public Works and Government Services) v The Hi-Rise Group Inc., 2004 FCA 99 at paras 33-42 (Hi-Rise Group)). The Federal Court has also found that a confidentiality agreement or blanket declarations of confidentiality were not sufficient to support objective confidentiality (see: Brookfield Lepage Johnson Controls Facility Management Services v Canada (Minister of Public Works and Government Services), 2003 FCT 254 at paras 17-19).

[32]While an expectation of confidentiality may exist between two private entities, when public funds are involved and the contract is with the government, the courts have found that there should be less expectation of confidentiality and that disclosure is often in the public interest (see: AstraZeneca Canada Inc. v Canada (Health), 2005 FC 189 at para 76, aff’d in 2006 FCA 241). While the third parties asserted that annual rent figures are confidential by virtue of being commercially sensitive, the third parties did not address how the information at issue differs from the information ruled on in the jurisprudence referenced above. As such, the parties have not established that information about funds spent by the government is objectively confidential.

[33]Based on the above, I am of the view that the circumstances in which the information originated and was communicated does not give rise to a reasonable expectation that it will not be disclosed.

[34]Regarding the third condition for confidentiality, whether the entirety of the information was communicated within the context of a relationship that is either fiduciary or would be fostered for public benefit by the communication’s confidentiality, PSPC stated that disclosing the annual rent figures is contrary to commercial practice as such amounts are usually withheld to protect the parties’ negotiating power.

[35]The third parties reiterated PSPC’s position, being that the disclosure would harm the relationship as it would affect the parties’ ability to fairly negotiate in future agreements.

[36]The parties asserted that keeping the annual rent figures confidential should not be considered contrary to the Act but instead should be viewed as necessary to the public interest, by treating information as confidential where the parties have expected and considered it to be so.

[37]A third party added that it cannot be in the public interest to hinder the government’s ability to negotiate a fair contract with respect to government expenditures. Governmental departments are expected to use taxpayer money in a fiscally responsible manner, and governments should not be placed in an unfair or lesser negotiating position.

[38]However, the parties’ arguments with respect to the potential harm contradict one another. They alleged that the disclosure would disadvantage the third parties as their competitors would be able to undercut them on price, but also alleged that the disclosure would put the government in a worse negotiating position which would result in it paying a higher price.

[39]In Hi-Rise Group, the Federal Court of Appeal stated that “[a]bsent special circumstances (national security comes to mind), I fail to see how public benefit could be fostered by maintaining the confidentiality of amounts paid or payable by government pursuant to contractual obligations with third parties”. In light of the substantial public funds being spent under these agreements and based on the third parties’ representations indicating that the government could be approached with better pricing in the event of disclosure, it seems that there is a public benefit in disclosing information surrounding the amount spent.

[40]As such, I am of the view that the annual rent figures do not fulfill the third condition as I am not satisfied that the relationship between the third parties and PSPC would be fostered for public benefit by confidentiality.

[41]In light of the above, I am not convinced the requirements of objective confidentiality are met for any of the information.

[42]Turning to the third requirement for paragraph 20(1)(b) to apply – that the information be supplied by the third party to the government institution – the case law on this requirement indicates that negotiated terms are not “supplied” by a third party to a government institution within the meaning of the paragraph 20(1)(b) exemption (see 131 Queen Street Limited v Canada (Attorney General), 2007 FC 347 at paras 33, 35 (131 Queen Street)). While a third party asserted that the annual rent figure was supplied by the third party to PSPC during the call for offers, I am of the view that negotiated information such as annual rent figures cannot be considered to have been supplied by the third parties, as the government’s acceptance of the third party’s offer renders it part of the negotiated terms.

[43]Regarding the fourth requirement, the third parties asserted that their practice is to always treat commercial rent amounts as confidential. Even within a third-party organization, for example, the third parties asserted that such information is communicated to employees only on a “need to know” basis. Based on the above, I am of the view that the third parties have consistently treated the withheld information as confidential.

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

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

[45]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.

[46]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.

[47]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.

[48]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?

[49]HOOPP Realty Inc., Montclair Boulevard Property Limited, 22 Varennes Regional Inc., and Les Cours Pointe-St-Charles requested that paragraph 20(1)(c) be applied to withhold the annual rent figures, in concurrence with paragraph 20(1)(b) and, in some instances, paragraph 20(1)(d), as they indicated that the disclosure of annual rent figures could be reasonably expected to result in material financial loss, or gain to a competitor with a rental property, and could reasonably be expected to prejudice the third party’s competitive position in the Canadian market. PSPC indicated that it would not provide representations on paragraph 20(1)(c).

[50]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 at paras 197, 206).

[51]HOOPP Realty Inc., Montclair Boulevard Property Limited, 22 Varennes Regional Inc., and Les Cours Pointe-St-Charles represented that the disclosure could reasonably be expected to be used by competitors to gain insight into the third party’s business and permit competitors to draw accurate inferences regarding the third party’s rental pricing. The four third parties asserted that the commercial real estate and leasing industry is highly competitive, and the knowledge of a competitor’s financial information would have serious implications in the context of competitive, structured government bid processes, in which a company may use the information to undercut a competitor’s bid or renewal of lease.

[52]22 Varennes Regional Inc. added that it is currently in negotiations for a new lease commencing in 2027, and that the disclosure could allow competitors to identify the party’s rate for the property, which could prejudice the third party’s competitive position.

[53]A third party also submitted that courts have held that disclosure of a contract price or rental amount would prejudice a third party (Equifax Canada Co v Canada (Human Resources and Skills Development), 2014 FC 487 (Equifax); Canada (Office of the Information Commissioner) v Calian Ltd , 2017 FCA 135, aff’g 2015 FC 1392 [Calian]; American Iron & Metal Company Inc v Saint John Port Authority, 2023 FC 1267 (American Iron)). I am of the opinion, however, that the case law cited relates to information and circumstances that are different from the current context, which distinguishes these cases from the current issue.

[54]For example, the information in Equifax relates to contract pricing and payment terms for data protection services, and the Federal Court found, at para 29, that the contract price in isolation would appear to be of little use to competitors. The finding was based on how the price could be used in combination with other information. In the present case, I feel that the parties have not shown what other information is available that would make disclosure of annual rent figures harmful.

[55]While I have considered American Iron, I am of the view that it is not relevant as the rent amounts were not at issue in the decision. In Calian, the court found that the personnel rates were crucial to Calian’s competitive position, and that the development of the personnel rates was effected through the confidential and proprietary information that the party directly obtained from, or negotiated with, the numerous potential providers, in addition to its own business analyses. In this instance, none of the third parties have established how disclosure of the specific annual rent figure withheld here reveals information of any real value to its competitors.

[56]In 131 Queen Street, the applicant notably alleged that the disclosure of information would undermine current negotiations regarding the premises, as potential tenants would become aware of concessions and inducements made to the governmental institution. However, the Federal Court found that the information on lease agreements could not be exempted as the expectation of reasonable harm was merely speculative.

[57]As such, although the third parties indicated that the information at issue should be withheld under paragraph 20(1)(c), and quoted some jurisprudence, the third parties have not 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.

[58]As previously mentioned, I am of the view that the parties’ arguments with respect to the potential harm contradict one another. They allege that the disclosure would disadvantage the third parties as their competitors would be able to undercut them on price but also allege that the disclosure would put the government in a worse negotiating position which would result in it paying a higher price. Based on these representations, the harm that could reasonably be expected to occur following disclosure remains unclear. The parties have not established that the disclosure of the details at issue could provide leverage to other third parties that could materially harm HOOPP Realty Inc, Montclair Boulevard Property Limited, 22 Varennes Regional Inc, or Les Cours Pointe-St-Charles’s competitive position or result in material financial loss or gain to any third party.

[59]None of the parties made representations identifying any specific link between disclosure and material financial loss, beyond loss flowing from damage to competitive position. The Federal Court stipulated, in Clowater v Canada (Industry), 2024 FC 916 at para 85, that evidence of heightened competition or increase competitive pressure is insufficient to establish expectation of probable harm. It added that hypothetical risk to future business opportunities also does not suffice. Similarly, in Canadian Pacific Hotels Corp. v Canada (Attorney General), 2004 FC 444 at para 35, the Federal Court stated the increased competition isn’t covered by the 20(1)(c) exemption.

[60]As such, I conclude that the information does not meet the requirements of paragraph 20(1)(c).

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

[61]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).

[62]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.

[63]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?

[64]HOOPP Realty Inc., Montclair Boulevard Property Limited, and 22 Varennes Regional Inc. represented that paragraph 20(1)(d) should be applied to withhold the annual rent figures, in concurrence with paragraph 20(1)(b) and paragraph 20(1)(c). PSPC indicated that it would not provide representations on paragraph 20(1)(d).

[65]The third parties identified certain types of negotiations that they asserted would be impacted by the disclosure of the information, which includes discussions of lease renewals. However, the parties have not established that there is a reasonable expectation of probable interference with the identified negotiations.

[66]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 at para. 49; Canada (Information Commissioner) v Canada (Minister of External Affairs), [1990] 3 FC 665 (FCTD) at paras 24-25).

[67]The Federal Court explained, in American Iron at para 71, that “obstruction or interference with contractual or other negotiations of a third party must be probable and not merely speculative. Evidence of heightened competition or increased competitive pressure is insufficient. Hypothetical risk to future business opportunities also does not suffice”.

[68]Certain third parties submitted that in Perez Bramalea Ltd v Canada (National Capital Commission), [1995] FCJ 63, the Federal Court held that there was a reasonable expectation of probable harm if prospective tenants knew the rental rate paid by the current tenant in the office building. The Court ordered disclosure of the information to be delayed until negotiations were over. However, I am of the view that the case law does not entirely apply here as most third parties did not identify specific negotiations that the disclosure would interfere with, nor how the information would be directly relevant with such negotiations. As explained by the Federal Court in 131 Queen Street at para 43, details such as, for example, the space that is available for 0ent, the parties involved in the negotiations, and the expected duration of the negotiations, are helpful in determining whether the information meets the requirements of the exemption. HOOPP Realty Inc. and Montclair Boulevard Property Limited did not provide any of this information.

[69]One third party, 22 Varennes Regional Inc., did explain that specific negotiations for a 2027 lease renewal are currently underway. It asserted that disclosure may allow a competitor to underbid Varennes or otherwise find way to prejudice their position. However, 22 Varennes Regional Inc. did not indicate how long these negotiations will take, whether these negotiations are with PSPC or whether there are other parties, and if the negotiations are for the same property.

[70]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 third-party negotiations, and how upcoming negotiations are directly related to the information at issue. The third parties’ representations do not go beyond general statements and speculation.

[71]Given the government leases a large amount of established office space, I am not convinced that disclosure of the details at issue here could reasonably harm the third parties’ negotiations in the absence of any specifics as to how that is the case.

[72]As such, I conclude that the information does not meet the requirements of paragraph 20(1)(d).

Outcome

[73]The complaint is well founded.

Orders and recommendations

I order the Minister of Public Works and Government Services to disclose the records in full.

Initial report and notice from institution

On January 2, 2026, I issued my initial report to the Minister of Public Works and Government Services setting out my order.

On February 4, 2026, PSPC’s Senior Director, Access to Information and Privacy gave me notice that PSPC would be implementing the 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 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:

HOOPP Realty Inc;
Société en Commandite Promenade du Portage;
Centrale des Syndicats du Québec;
Lord Realty (Quebec) Limited Partnership;
Montclair Boulevard Property Limited;
Newvest Realty Corporation;
22 Varennes Regional Inc.;
Les Cours Pointe St-Charles Inc.;
1600 René-Lévesque Ltée.