Transport Canada (Re), 2026 OIC 7

Date: 2026-01-14
OIC file number: 5823-02471
Access request number: A-2023-00060

Summary

The complainant alleged that Transport Canada had improperly withheld information under paragraph 20(1)(b) (confidential third‐party financial, commercial, scientific or technical 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 contracts related to the aggregate extraction operation occurring as part of the Albion Road Project (the Project) on land leased to the Ottawa International Airport Authority (OIAA), from January 2019 to May 17, 2023. The allegation falls under paragraph 30(1)(a) of the Act.

The contract that is the subject of the complaint was between two third parties, the OIAA and Thomas Cavanagh Construction Limited. Even though contracts between third parties generally have heightened expectation of confidentiality, neither Transport Canada nor any of the third parties established that all the requirements of the exemptions were met for specific information.

The Information Commissioner ordered that Transport Canada disclose certain content of the contract. Transport Canada gave notice to the Commissioner that it would comply with the order. The complaint is well founded.

Complaint

[1]The complainant alleged that Transport Canada had improperly withheld information under paragraph 20(1)(b) (confidential third‐party financial, commercial, scientific or technical 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 contracts related to the aggregate extraction operation occurring as part of the Albion Road Project (the Project) on land leased to the Ottawa International Airport Authority (OIAA), from January 2019 to May 17, 2023. The allegation falls under paragraph 30(1)(a) of the Act.

[2]During the investigation, the complainant decided it was no longer necessary for the Office of the Information Commissioner (OIC) to investigate the names and signatures in the contract, which appear on page 69.

Investigation

[3]When an institution withholds information related to a third party(ies), the third party(ies) and/or the institution bears the burden of showing that refusing to grant access is justified.

[4]The OIC sought representations from the OIAA and the third party it contracted with, Thomas Cavanagh Construction Limited, pursuant to paragraph 35(2)(c) of the Act. I gave notice to the third parties under section 36.3 that I was not satisfied that the requirements of the exemptions were met for specific information related to them.

[5]Both Transport Canada and the complainant were also asked to provide representations during the investigation.

[6]I considered all of representations provided by the third parties, Transport Canada and the complainant in coming to my decision.

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

[7]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.

[8]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.

[9]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?

[10]Transport Canada applied paragraph 20(1)(c) concurrently with paragraphs 20(1)(b) and 20(1)(d) to withhold the entirety of the contract.

[11]For paragraph 20(1)(c) to apply, there must be a clear and direct connection between the disclosure of specific information and a risk of harm well beyond the merely possible or speculative (see: Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras. 197, 206).

[12]In their representations, the third parties stated that disclosing the financial and commercial information would have an impact on their revenues and harm their competitive position. With respect to this type of information, during the processing of the request, Thomas Cavanagh Construction Ltd provided a redacted version of the records, where it suggested that some financial information should be redacted if the entire contract was not found to be exempt.

[13]Transport Canada stated in its representations that it only maintains the application of paragraph 20(1)(c) for the financial information contained within the contract.

[14]In the decision Aventis Pasteur Ltd. v. Canada (Attorney General), 2004 FC 1371, the Court stated that “disclosure of the information can reasonably be expected to prejudice the competitive position of the applicant in upcoming bids and can reasonably be expected to result in financial loss to the applicant. Obviously, the applicant's competitors will undercut the prices charged by the applicant if at all possible. As indicated by counsel for the applicant, this prejudice is only aggravated by the fact that the applicant will not have similar information about its competitors.”

[15]After a careful review, I accept that releasing certain financial information could reasonably be expected to harm the third parties’ competitive position. Therefore, I conclude that the following information within the contract meets the requirements of paragraph 20(1)(c):

The content of sections 5.01, 5.02 and 5.03;
The financial information cited under section 5.09(i);
The financial information cited under section 10.01(e) on page 35.

[16]Given that I accept that the requirements of paragraph 20(1)(c) are met for the above noted financial information, it was not necessary to examine whether the requirements of paragraphs 20(1)(b) and 20(1)(d) are met for the same information.

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

[17]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).

[18]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?

[19]Transport Canada applied paragraph 20(1)(b), concurrently with paragraphs 20(1)(c) and 20(1)(d) in most cases, to withhold the entirety of the contract. The information that meets the requirements of paragraph 20(1)(c) is excluded from this analysis.

[20]Both Transport Canada and the third parties argued in their representations that the contract falls within the definition of “commercial” and that only the first page of the contract could be disclosed. The third parties also stated that the contract sets out the terms and conditions of the commercial relationship negotiated between them and that the information therein, by extension, is commercial. In their response to the notice pursuant de section 36.3, the third parties identified a list of clauses that, at a minimum, in their opinion constituted confidential commercial information, within the meaning of the Act.

[21]The courts have consistently held that "[a] document must itself contain financial or commercial information. It is not enough that the document was created in the context of a proceeding that may have financial or commercial implications." (Appleton & Associates v. Canada (Privy Council Office), 2007 FC 640 at para 26).

[22]The term “commercial” is defined as follows in the Concise Oxford Dictionary, 8th ed. (Oxford University Press 1991):

Commercial: 1. of, engaged in, or concerned with, commerce. 2. Having profit as primary aim rather than artistic etc. value

[23]In the Federal Court of Appeal decision Canada (Information Commissioner) v. Canada (Transportation Accident Investigation and Safety Board), 2006 FCA 157, the Court indicated that the word “commercial” connotes information which in itself pertains to trade or commerce. The Court in that case went on to note that merely because the third party was in the business of providing particular services for a fee, that did not mean that information collected while performing those services could necessarily be characterized as “commercial”. The Court also found that it is incorrect to characterize the entire record collected during an air navigation flight as being “technical” information when only a specific part might be, for instance when precise flight instructions are given.

[24]In addition, the information at issue is related to the use of a licensed area. In the decision Chippewas of Nawash First Nation v. Canada (Minister of Indian and Northern Affairs) (1999), 251 N.R. 220 at 222 (F.C.A.), the Court found that merely because documents contain references to land, they do not constitute financial information.

[25]I acknowledge that the contract contains some technical, commercial and financial information. More specifically, I find that the following information meets this requirement:

The content of sections 1.01(a), 1.01(b) and 1.01(hh);
The last paragraph of section 2.01;
The content of sections 2.02, 2.03(a), 2.05;
The last paragraph of section 4.03 ;
The content of sections 5.07, 5.09(v), 5.09 (vi), 5.10, 7.07, 8.02(b), 8.07, 8.08, 10, 11.01, 11.02, 11.03, 11.04, 13.01, 14; and
Schedules A, B and D.

[26]The third parties demonstrated that the above clauses meet the first requirements of the exemption. With respect to the remainder of the contract, the parties failed to demonstrate such information constituted commercial information. Per Appleton & Associates v. Canada (Privy Council Office) 2007 FC 640, at para 26, in order to qualify for exemption, the information must itself be commercial and it is not enough that it was created in the context of a relationship with financial or commercial implications.

[27]Therefore, the first requirement of paragraph 20(1)(b) is only met for the portions of the contract listed above.

[28]The second requirement for paragraph 20(1)(b) requires that the institution demonstrate the information is objectively confidential. To do so, each of the following conditions must be met:

The information must not be available from sources otherwise accessible by the public;
It must originate and be communicated with a reasonable expectation that it will not be disclosed;
It must be communicated, whether required by law or otherwise, in a relationship between government and the party supplying it that is either a fiduciary relationship or one that is not contrary to the public interest. This relationship must be fostered for public benefit by the confidential communication. (see: Air Atonabee Ltd. v. Canada (Minister of Transport), [1989] F.C.J. No. 453).

[29]Information relating to the existence and reason for the contract, as well as approvals, urban and environmental considerations and certain activities to be carried out, were publicly available through various sources at the time Transport Canada responded to the request. At this time, general information about the Project contained within the contract can still be publicly accessed here:

Public Participation Notice of Intent to make a determination (iaac.gc.ca): this is a link to a Public Notice. The OIAA invited comments from the public regarding the Project. As a result, the fact that the OIAA granted a lease to Thomas Cavanagh Construction Ltd to complete an aggregate extraction project is information that is publicly available, as well as a short description of the Project.

[30]During the investigation, the OIC found certain other documents and websites containing information relating to the Project, including the document “Planning Justification Report” that is no longer available. The documents contained information reflecting initial approvals, use of the licensed area and compliance with laws and with Agreements, as well as the information included in the Supplemental Agreement OW2460-1. The documents also listed the activities which the Licensee should undertake to carry out the Project.

[31]Both Transport Canada and the third parties asserted that while there is some information in the public domain about the Project and the existence of the contract, this information does not include the financial and commercial details of the contract.

[32]The information that was publicly accessible at the time the exemptions were applied is contained within the following portions of the contract:

The content of sections 1.01(a), 1.01(b) and 1.01(hh);
The content of section 2.02, except for the portion on fees and explanation of “Required Conditions” ; and
The general information on the Schedule D, except for the provisions.

[33]As set out above, when disclosure would only reveal information that is already publicly available, the requirement of objective confidentiality cannot be met.

[34]The third parties argued that the contract contains both commercial and financial information that was intended to remain confidential, which is reflected in the non-disclosure agreement signed by Thomas Cavanagh Construction Ltd. Transport Canada agreed with the third parties that the information originated and was communicated in a reasonable expectation of confidence that it would not be disclosed.

[35]Both Transport Canada and the third parties asserted that the contract would be protected from disclosure since third parties are not subject to the Act in the ordinary course of their operations. Transport Canada highlighted that the information was not gathered in its regulatory capacity, but rather, as a landlord, pursuant to the terms of the lease agreement between Transport Canada and the OIAA (the Ground Lease).

[36]Moreover, Transport Canada questioned how the purpose of the Act is served through the disclosure, or partial disclosure, of information such as a contract between two private third parties. It labelled it “absurd” that the purpose of the Act could be to “provide the public with a backdoor to get around privity of contract between two private third parties.”

[37]Transport Canada has failed to acknowledge that all information under the control of a government institution is subject to the Act. I am not suggesting that the Act be treated as a “backdoor to get around privity of contract”, but instead I am insisting that the Act be applied in a manner consistent with the requirements of the exemptions.

[38]In this instance, I accept that there is a reasonable expectation of confidentiality for the information that reflects the commercial provisions of the contract negotiated between third parties.

[39]Both the third parties and Transport Canada stated that the confidential communication of the records fosters the relationship between the OIAA and Transport Canada for the public benefit. Transport Canada indicated that the OIAA generates an important part of its revenues from engaging in contracts with private entities and Transport Canada receives a percentage of these revenues as rent. It added that the OIAA must be able to contract with private entities in a confidential and commercial capacity to fulfill its obligation under the Ground Lease.

[40]The public benefit condition requires one to consider the relationship between the government institution and the third party, the nature of the information at issue, and the context in which it was supplied to the institution. In Canadian Imperial Bank of Commerce v. Canada (Chief Commissioner, Human Rights Commission), 2007 FCA 272, the Federal Court of Appeal explained that “[t]he public benefit requirement is intended to ensure that the benefit of the exemption only accrues in the public interest. It does not call for a weighing of the public interest between disclosure and nondisclosure. If the relationship is not contrary to the public interest, and if that relationship will be fostered by preserving the confidentiality of the communications passing between the parties to the relationship, then nondisclosure is indicated.” (para 68).

[41]Transport Canada and the OIAA are engaged in a contractual relationship, where the OIAA was required to provide Transport Canada with a copy of the contract between itself and Thomas Cavanagh Construction Ltd. The relationship between Transport Canada and the OIAA is not contrary to the public interest. However, the parties have not demonstrated how such a relationship is fostered by preserving the confidentiality of the entirety of a contract. While this requirement applies for certain information that relates to specific business conduct between the third parties, it does not seem to apply for the entirety of the contract. Neither the OIAA nor Transport Canada has cogently explained how the relationship between the OIAA and Transport Canada, which is defined by the Ground Lease, will be fostered by maintaining confidentiality over the entirety of the contract at issue, including the information that was publicly available. Thus, this requirement is not met for the publicly available information.

[42]Considering the above, I am not convinced that the information at issue that was made public meets the second requirement of paragraph 20(1)(b).

[43]Turning to the third requirement of paragraph 20(1)(b), I accept that the information was supplied to the government by a third party.

[44]Regarding the final requirement of the exemption, I accept that the third parties have consistently treated the information as confidential, apart from the information that was made public.

[45]I conclude that the information at issue does not meet the requirements of paragraph 20(1)(b), except for the following information:

The last paragraph of section 2.01;
The portion of text on fees and explanation of “Required Conditions” under section 2.02;
The last paragraph of section 4.03;
The content of sections 2.03(a), 2.05, 5.07, 5.09(v), 5.09 (vi), 5.10, 7.07, 8.02(b), 8.07, 8.08, 10, 11.01, 11.02, 11.03, 11.04, 13.01, 14 ;
Schedules A and B; and
The provisions in Schedule D.

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

[46]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).

[47]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?

[48]Transport Canada applied paragraph 20(1)(d) concurrently with paragraphs 20(1)(c) and 20(1)(b) in most cases, to withhold the entirety of the contract. The information that meets the requirements of paragraphs 20(1)(c) and 20(1)(b) is excluded from this analysis.

[49]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). Hypothetical risk to future business opportunities also does not suffice. There must be evidence of the effect of disclosure on actual, specific or ongoing contractual negotiations (American Iron & Metal Company Inc v Saint John Port Authority, 2023 FC 1267 at para 71, Concord Premium Meats Ltd. v. Canada (Food Inspection Agency), 2020 FC 1166 at para 116-117).

[50]In their representations, the third parties mentioned that there is a clear link between the disclosure of the contract and the anticipated interference with future and ongoing negotiations. They argued that the disclosure would interfere with future negotiations. However, they did not identify actual, specific or ongoing contractual negotiations expected to be interfered with. Consequently, their representations are speculative and not sufficient to demonstrate that the requirements of the exemption are met.

[51]Transport Canada stated in its representations that it is not convinced that the records meet the threshold of the exemption. Transport Canada added it would likely relinquish the application of paragraph 20(1)(d).

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

Outcome

[53]The complaint is well founded.

Orders

I order the Minister of Transport to disclose the content of the contract except for the following portions of the contract:

Specific information under sections 2.01, 2.02, 4.03, 5.09(i) and within schedule D, as laid out above;
Sections 2.03(a); 2.05; 5.01; 5.02; 5.03; 5.07; 5.09(v); 5.09 (vi); 5.10; 7.07; 8.02(b); 8.07; 8.08; 10; 11.01; 11.02; 11.03; 11.04; 13.01; 14; Schedule A and Schedule B in their entirety.

Initial report and notice from institution

On November 20, 2025, I issued my initial report to the Minister of Transport setting out my order.

On January 9, 2026, Transport Canada gave me notice that it would be implementing the order, in accordance with the timelines established in paragraph 36.1(4) and subsection 37(5) of the Act.

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 the OIAA and Thomas Cavanagh Construction Limited.