ORDER PO-4781

Appeal PA24-00424

Ministry of Long-Term Care

January 29, 2026

Summary: The Ministry of Long-Term Care received a request under the Freedom of Information and Protection of Privacy Act  for its current agreement with specific long-term care homes for bed expansions and redevelopment. The ministry denied the appellant access to one agreement under section 17(1) of the Act, the mandatory exemption for third party information. In this order, the adjudicator finds that there is no issue to adjudicate because section 17(1) of the Act clearly does not apply to the agreement. She declines to conduct an inquiry in accordance with section 8.03(a) of the IPC’s Code of Procedure and orders the ministry to disclose the record at issue to the appellant.

Statutes Considered: Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. F.31, section 17(1) . Section 8.03(a) of the IPC’s Code of Procedure.

OVERVIEW:

[1] The Ministry of Long-Term Care (the ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act) for copies of records related to two long-term care homes. The requester clarified with the ministry that she was seeking only documents that contained the current agreement between the ministry and the long-term care homes for bed expansions and redevelopment.

[2] The ministry notified the long-term care homes as affected parties in accordance with section 28(1) of the Act and sought their views on the disclosure of four responsive records. One of the long-term care homes (the home) responded by objecting to the disclosure of certain information in one of the records.

[3] The ministry issued an access decision granting full access to three of the responsive records. It denied access in full to the fourth record, an 84-page development agreement (the agreement), under the discretionary exemption at section 18(1) of the Act for economic or other interests. The requester (now the appellant) appealed the ministry’s access decision. The ministry then issued a revised decision to the appellant indicating that it was no longer relying on section 18(1) of the Act to deny access to the agreement and was instead applying the mandatory exemption for third party information at section 17(1) of the Act.

[4] An IPC mediator was assigned to the matter and sought consent from the home to disclose the agreement. The mediator’s report transferring the appeal to the adjudication stage of the appeals process indicated that the affected party declined to consent and that the appellant wanted to pursue access to the agreement at adjudication. The matter was then transferred to the adjudication stage of the appeals process and assigned to me.

[5] After reviewing the mediator’s report and the record at issue, I advised the ministry and the home that my preliminary view was that the record at issue is an agreement containing negotiated information and that, consequently, section 17(1) of the Act does not apply to it. I explained that, as a result, my preliminary view was that there is no issue to adjudicate, that the appeal should be allowed, and that the ministry should be ordered to disclose the agreement to the appellant. I invited representations in response to my preliminary view letter from the ministry and the home, if they disagreed.

[6] The home advised that it consented to the disclosure of the agreement. The ministry confirmed that it would issue a revised decision to disclose the agreement to the appellant. I wrote to the ministry asking that it issue its revised decision to the appellant by a certain date. The ministry did not comply with the date. In this order, I find that the record at issue is an agreement and that section 17(1) of the Act clearly does not apply to it. I exercise my discretion under section 8.03 of the Code not to conduct an inquiry, and I order the ministry to disclose the agreement to the appellant.

DISCUSSION:

The IPC’s Code of Procedure

[7] Section 8.01 of the Code says that an adjudicator may conduct an inquiry to dispose of some or all of the issues in an appeal. Section 8.02 states that the adjudicator may consider the information contained in the Mediator’s Report to determine whether the circumstances warrant conducting an inquiry. Section 8.03 provides guidance on when an adjudicator may decline to conduct an inquiry. Section 8.03(a) is relevant to this appeal and states the following:

Without limiting the Adjudicator’s authority to decline to conduct an Inquiry for any other reason, the Adjudicator may decline to conduct an Inquiry where:

(a) there is no issue to adjudicate[.]

[8] In my letters to the parties, I explained that my preliminary view was that section 17(1) of the Act clearly did not apply to the record at issue, that there was no issue to adjudicate, and that the ministry should disclose the record to the appellant. I offered the ministry and the home an opportunity to respond to my preliminary view. Neither disagreed with my assessment of the appeal. The ministry confirmed that it would revise its decision and disclose the record at issue to the appellant. However, it did not do so in accordance with the timeline I set.

[9] Below I set out my reasons for determining that there is no issue to adjudicate and provide my reasons for allowing the appeal and ordering the ministry to disclose the agreement to the appellant.

Section 17(1) of the Act

[10] As noted above, the ministry withheld the record at issue under section 17(1) of the Act. The purpose of section 17(1) is to protect certain confidential information that businesses or other organizations provide to government institutions,[1] where specific harms can reasonably be expected to result from its disclosure.[2] For section 17(1) to apply, the party arguing against disclosure must satisfy each part of the following three-part test:

1. the record must reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information,
2. the information must have been supplied to the institution in confidence, either implicitly or explicitly, and
3. the prospect of disclosure of the record must give rise to a reasonable expectation that one of the harms specified in paragraph (a), (b), (c) and/or (d) of section 17(1) will occur.

[11] Each of the three parts of the test above must be satisfied for the section 17(1) exemption to apply. If any part of the test is not met, the exemption does not apply.

[12] In this case, I advised the parties that it appeared clear to me that the record at issue is an agreement between the ministry and the home. I said that in my preliminary view, all 84 pages at issue appear to be part of a contract that was negotiated and executed by the ministry and the home. I explained that it is well established by previous IPC orders that the contents of an agreement involving an institution and a third party will not normally qualify as having been “supplied” for the purpose of section 17(1).[3]

[13] I noted that an exception to this general rule is where disclosure of the information in a contract would permit accurate inferences to be made with respect to underlying non-negotiated confidential information supplied by an affected party to an institution. This is called the “inferred disclosure” exception. I explained that I reviewed the entire agreement, and its schedules, in detail and that there did not appear to be any information that would permit any accurate inferences about non-negotiated information to be made.

[14] I said that my preliminary view was that the information at issue was not supplied to the ministry, and as a result, that part two of the three-part test in section 17(1) is not met. As noted above, all three parts of the test in section 17(1) must be met for that section to apply. I said that because it is clear that section 17(1) does not apply, there is no issue to adjudicate in this appeal. I advised the parties that I intended to allow the appeal and order the ministry to disclose the agreement to the appellant.

[15] I invited the ministry and the home to make representations if they disagreed with my preliminary assessment of the appeal. The home confirmed that it did not object to the disclosure of the agreement. The ministry advised that it intended to revise its decision and disclose the agreement to the appellant. I asked the ministry to issue its revised decision by a specific date. It did not do so. As such, I am ordering it to do so now.

[16] For the reasons set out above, I find that there is no issue to adjudicate because it is clear section 17(1) of the Act does not apply to the record at issue. I exercise my discretion under section 8.03(a) of the Code to decline to conduct an inquiry. The appeal is allowed and the ministry is ordered to disclose the agreement to the appellant.

ORDER:

1. I order the ministry to disclose to the record at issue to the appellant by February 27, 2026.
2. To verify compliance with provision 2 of this order, I reserve the right to require the ministry to provide me with a copy of the record disclosed to the appellant upon request.