Ontario court finds Information and Privacy Commissioner’s decision to order disclosure of a commercial contract between bank and university reasonable

Application for judicial review of order requiring disclosure of contract between financial institution and university.

Administrative Law – Compliance with legislation – Decisions reviewed – Disclosure of records – Freedom of information and protection of privacy – Judicial Review – Privacy Commissioner – Reasonableness – Standard of Review

Toronto-Dominion Bank v. Ryerson University, [2017] O.J. No. 1361, 2017 ONSC 1507, Ontario Superior Court of Justice – Divisional Court, March 17, 2017, K.E. Swinton, A.L. Harvison Young and J.A. Thorburn JJ.

Toronto-Dominion Bank ‎(“TD”) entered into a contract with Ryerson University regarding promotion of financial service products to Ryerson’s alumni, staff, and students, in return for compensation to Ryerson (the “Affinity Agreement”).

A third party applied under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F. 31 (the “Act”) to the Information and Privacy Commissioner of Ontario (the “IPC”) for disclosure of the Affinity Agreement.

TD took the position the Affinity Agreement should not be disclosed because it contained confidential commercial information that is competitively sensitive and exempt from disclosure under the Act.

The IPC ordered disclosure on the basis the Affinity Agreement contained commercial information‎, but the information was not supplied in confidence to Ryerson.

On judicial review, the Divisional Court held ‎the IPC’s interpretation and application of provisions of the Act exempting disclosure of commercial information was reasonable. The IPC held in order to be exempt from disclosure under the Act the information must be supplied or conveyed in confidence. Following the approach taken in the jurisprudence with respect to commercial information in contracts, the Divisional Court upheld the IPC’s conclusion that because the information was the result of contractual negotiations it was not supplied in confidence. That interpretation was also consistent with the purpose of the Act, namely that information should be available to the public and exemptions should be limited and specific.

The application for judicial review was dismissed.

This case was digested by Joel A. Morris of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at jmorris@harpergrey.com or review his biography at http://www.harpergrey.com.

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