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InfoSource Bulletin 2003 - Privacy Act and Access to Information Act

Promaxis Systems Inc. v. Minister of Public Works
and Government Services (Canada)
Indexed as: Promaxis Systems Inc. v. Canada
(Minister of Public Works and Government Services)

File No.:	T-1755-00
Reference:	[2002] F.C.J. No. 1204 (QL) (F.C.T.D.)
Date of decision:	August 30, 2002
Before:	MacKay J.
Section(s) of ATIA / PA:	Ss. 20(1)(b), (c), (d) Access to Information Act (ATIA)

Abstract

Third party information
Total cost figures contained in original proposal for contract not confidential information
Mere assertions of harm not sufficient
Daily business operations of third party not caught under para. 20(1)(d)

Issue

Are the total cost figures contained in an original proposal for a contract exempt from disclosure pursuant to paras. 20(1)(b), (c) or (d) of the ATIA?

Facts

Two contracts were concluded between the applicant Promaxis Systems Inc. and the respondent Minister. One of the contracts was previously released to a requestor under the ATIA. Promaxis now seeks, in its s. 44 application for judicial review, to prevent the Minister from disclosing certain total cost figures contained in its original proposal for that contract. Promaxis argues that the disclosure of this information to a third party, likely a potential competitor, will be detrimental to its competitive position and could severely damage its business.

Decision

The application for judicial review was dismissed.

Reasons

Paragraph 20(1)(b)
The Court held that the total cost figures was not confidential information within the meaning of para. 20(1)(b), however it may have been considered and treated by Promaxis. In reaching this conclusion, it relied on the following comments made by Strayer J. in Société Gamma Inc. v. Canada (Secretary of State) (1994), 79 F.T.R. 42, at p. 46:

One must keep in mind that these Proposals are put together for the purpose of obtaining a government contract, with payment to come from public funds. While there may be much to be said for proposals or tenders being treated as confidential until a contract is granted, once the contract is either granted or withheld there would not, except in special cases, appear to be a need for keeping tenders secret. In other words, when a would-be contractor sets out to win a government contract he should not expect that the terms upon which he is prepared to contract, including the capacities his firm brings to the task, are to be kept fully insulated from the disclosure obligations of the Government of Canada as part of its accountability.

Paragraph 20(1)(c)
It is not sufficient that an applicant's affidavit swear to his or her concerns about reasonable expectations of probable harm without some further evidence of specific harm anticipated. The Court held that the assertions that the labour cost and hourly wage figures could be calculated by knowledgeable people from total costs proposed did not in itself demonstrate that the information ought not to be disclosed. The evidence regarding potential layoffs arising from the loss of the contracts and the ripple effect on Promaxis' ability to serve its clients was speculative. Promaxis' fears regarding the effects of its staff knowing the total bid prices and making the calculations of the applicant's margin of profits in relation to wage costs did not demonstrate probable harm to Promaxis. The para. 20(1)(c) exemption was therefore inapplicable.

Paragraph 20(1)(d)
The Court held that vague concerns about employee relations with management were matters within the day-to-day operations of Promaxis' business rather than matters arising from particular contractual negotiations with outside agencies. Any impact from the release of the information would not interefere, according to the Court, with other specific contractual negotiations of Promaxis.