ARCS: 292-30

File: TRA-2016-60929-R

October 26, 2017

Dear Bob Mackin:

Re: Request for Access to Records

Freedom of Information and Protection of Privacy Act (FOIPPA)

I am writing further to your request received by the Ministry of Transportation and

Infrastructure and related OIPC File No. F16-65784. Your request was for:

Regarding the Evergreen Line Rapid Transit Project: the change order log showing the
individual dates changes were initiated, negotiated and finalized, the transaction or file
numbers for each of the changes, the costs or credits for each change, the cumulative amounts
to date, the time in calendar days of the extensions and the adjusted totals, and the detailed
description of the individual changes. (Date Range for Record Search: From 11/21/2015 To
02/26/2016)

In response to OIPC Order F17-45, please find enclosed a copy of the records located in
response to your request. These records are provided to you in their entirety. Your file is now
closed.

These records will be published on the BC Governments Open Information website a minimum
of five business days after release. To find out more about Open Information, please access the
Open Information website at: www.gov.bc.ca/openinformation

If you have any questions regarding your request, please contact me at 250 387-1371. This
number can be reached toll-free by calling from Vancouver, 604 660-2421, or from elsewhere in
BC, 1 800 663-7867 and asking to be transferred to 250 387-1371.

Sincerely,

Ministry of Citizens Services
Information Access Operations
/2
Mailing Address: Website:
PO Box 9569 Stn Prov Govt www.gov.bc.ca/freedomofinformation
Victoria BC V8W 9K1 Telephone: 250 387-1321
Fax: 250 387-9843
 2

Dave Kotorynski, Senior FOI Analyst

Business and Infrastructure Team, Information Access Operations

Cc: Cindy Hamilton, OIPC

 EVERGREEN LINE Change Register

Preliminary Change Description Change Request Issued Cost of Preparing Initial Change Report Final Change Report Paid evaluation Change Certificate Extension of time days Remarks
Instruction Change Report Received Received Issued

Number Date $ Date Date $ Date

19

Construction of a Drain in Place of a Ditch on Bond Street, Coquitlam, Granular Backfill to the Metro Vancouver Water Main at
the Future Park and Ride Entrance, Coquitlam, and the Provision of Supplementary Lands below Westwood Honda,
Coquitlam. 12 April '14 0 Agreed pending 0 Agreed, waiting for change report

20 Design and Construction Associated with Additional Parking Spaces to the Parking Lot serving Westwood Honda, 2400
Barnet Highway, Port Moody

3 June '14 7 Aug '14 12 Aug '14 48,689 13 Aug '14 0

21 Station Signage to be issued Scope unknown

22

10 October '14

Design and Construction Associated with the Addition of Elevated Guideway Walkways South of Burquitlam Station Original change request did not include covers, which are required; and
Connecting the Station Platform to the Cross-Over Walkways 29 May '14 270,519 Rev 10 Nov '15 0 shimming added. Revision adds additional fence

23 Credit for Reinstatement Work to Pinetree Way 17 November '14 -310,000 6 February '15 0 Credit to be passed to Coquitlam

24 CIP Concrete Retaining Wall, East of Inlet Centre Station 7 July '14 145,272 17 December '14 0

estimate to be reviewed and amended or confirmed

25 Moody Centre Station Public Art Installation 15 July '14 128,400 15 September '15 0

value increased due to a scope increase

26 Platform Edge Monitor Credit 29 May '14 21 July '14 25 July '14 -23,265 13 Aug '14 0 Credit to be passed to Translink

27

Change of In-Fill Surface Treatment between Those Lengths of At Grade Guideway that consist of Separated Track Sections
from Grass and Topsoil to Gravel 3 Sep '14 12 Aug '14 98,231 25 August '15 0

Contractor disagrees with evaluation requests a payment of either

$301,939 or $193,227, amount unconfirmed

28 The Additional Cost of Construction of Twelve Ducts in place of a Two Duct Telus Duct Bank Between From Electronic
Avenue to Murray Street, Port Moody

14 Aug '14 15 Aug '14 236,810 9 Sep '14 0

29 Completion of direct works

Asphalt Mill and Overlay to Areas of Work Carried Out As Direct Works on Como Lake Avenue 19 Sep '14 179,632 9 March '15 0

30 Change Fencing at Port Moody from type 1 to type 2 10 July '14 30,303 21 October '14 0

Minor works requested on site by email 10th July 2014

31 Barnet Pedestrian Crossing Flagging Costs 5 May '14 11 Aug '14 11 Sep '14 58,755 21 October '14 0

Minor works requested by correspondence 5th May 2014

32

Removal of Organic Fill from Basements on Clarke Road at Approximate Location 416+470 9 June '14 9 June '14 9 June '14 30,061 7 November '14 0

The NPC was not accepted until November 2014, which was considered
sufficient documentation

33

Lafarge Lake Douglas Station: Utility Stub Requirements, Curb Bulge Extension, and Roadwork Scope Transfer 14 November '14 38,494 6 February '15 0

34 Retaining Wall in Port Moody 12 November '14 4 Dec '14 4 Dec '14 278,637 8 December '14 0

35

Public Art Installation at Burquitlam, Coquitlam Central, Lincoln, and LaFarge Lake-Douglas Stations 22 December '14 5 May '15 148,214 17 July '15 0

36 Guideway Parapet Noise Barriers 7 November '14 777,197 24 September '15 0

37

Application of Additional Anti-Graffiti Coating to Structures in Excess of Those Set out in the Project Agreement 8 December '14 116,554 18 March '15 0

38 Extend the Length of Station Public Staircase Handrails 20 November '14 4 Dec '14 41,491 7 May '15 0

TRA-2015-53862
1 2015-12-09
 EVERGREEN LINE Change Register

39 Adjustments and Modifications to Road Barriers on Clarke Street 5 December '14 70,861 6 February '15 0

40 Replace the Existing Light Fixtures on the Port Moody WCE Station on hold

41

Modifications to ATC Software ATC Switch Route Renumbering In, and Adjacent To, the VSF 17 December '14 4 March '15 4 March '15 50,837 1 April '15 0

To provide access to the tunnel, carried out after the guideway was
complete
42 Provision of a South Portal High Rail Access to the Outbound Guideway 12 January '15 322,633 22 June '15 0

43 Additional Milling and Paving Along North Road and at the Junction of Clarke Road 21 January '15 92,931 7 May '15 0

was on hold being progressed as from July 2015

44

Design and Construction of a New 1350mm diameter Culvert and the associated Raising of Aberdeen Avenue between Bond
Street and Lansdowne Drive 2 February '15 0

45

Deletion of Future Fare Gate Barriers at Burquitlam, Moody Central Main Entrance, Inlet West Entrance, Lincoln, and LaFarge
Lake-Douglas Stations 9 February '15 0 7 May '15 0 A no cost or credit Change

46

Moody Central Station West Coast Express Area Minor Works comprising of the Relocation of Existing West Coast Express
Service Kiosks and the Addition of A Guideway Access Gate 9 February '15 17 June '15 212,117 15 September '15 0

47 Revised Station Exit and Non-Smoking Signs 9 February '15 8 April '15 13 April '15 79,510 15 June '15 0

48 Revised Advertising Sign Support Bracket included elsewhere Included in Change 79

49

Increased Pressure Rating to the 600mm Diameter GVRD Water Main Located under the VSF 27 February '15 11 March '15 67,042 11 March '15 0

50 Demolition of 2910 Spring Street, Port Moody 15 January '15 15 Jan '15 15 Jan '15 40,380 23 March '15 0

51 Minor Works on North Road and Clarke Street 31 July '14 22 Sep '14 2 Dec '14 0 Waiting for clarification

52 Revised Installation of Tactile Warning Strips 20 October '14 5 Jan '15 5 Jan '15 38,747 18 June '15 0

Query whether Translink has responsibility

53 Burquitlam PPS Retaining Wall 17 April '15 17 April '15 17 April '15 193,361 26 August '15 0

54 Coquitlam Bus Loop Restoration 15 March '15 24 Mar '15 24 Mar '15 71,903 7 May '15 0

The Change scope was expanded between the initial and final report

55 Moody Street Overpass Railing, Maintenance Costs 4 May '15 5 May '15 -26,120 18 June '15 0

It was agreed that inflation would not be included

56 Inlet Centre Station - Additional Wall Tile 5 May '15 5 May '15 5 May '15 148,088 7 May '15 0

Translink have agreed to Contribute $75,000 to this Change

57 Qnet Duct Inlet Station 5 May '15 5 May '15 5 May '15 25,001 18 June '15 0

As the duct was installed on site after the effective date, this is not
considered an unforeseen utility

58 Inlet Station Public Art Tiling 29 May '15 57,460 17 July '15 0

59 Pinetree Guideway Drainage 5 June '15 29,602 22 June '15 0 Agreement with the City of Coquitlam

60 Work to Golden Spike Lane 26 Feb '15 61,831 17 July '15 0

61 South Portal Fencing 15 June '15

TRA-2015-53862
2 2015-12-09
 EVERGREEN LINE Change Register

62 B.C. Hydro Duct Re-Routing Barnet and Lougheed Highway 5 May '15 363,891 22 June '15 0

Settlement of dispute related to NPC 047

63 Infill Ditch North of Clarke 5 May '15 148,000 18 June '15 0

64 Minor Works Changes Requested by the Province 1 16 Feb '15 17 June '15 33,314 18 June '15 0

10 Oct '14 to 31 Mar 15

A group of minor changes, designated 1, as in the future there may be

other similar groupings

65 Intertrack Fences in Stations 5 May '15 28 May '15 28 May '15 71,890 17 July '15 0

66 Westwood Honda Civil Works 28 May '15

67 Minor Works Changes Requested by the Province 2 14,067 25 August '15 0

1 April '15 to 30 June 15

68 TVM Cable at Lougheed East Station House 29 May '15 17,152 22 June '15 0

The cables should have been removed by Translink prior to this stage of
construction

69 Sundry Station Changes to Signage, Locks, and Service Chaseway Spares 9 July '15 17 July '15 132,790 17 July '15 0

4 Feb, 5th May, 12th

June 2015

70 Design of Moody Parking Lot "E" 31 July '15 3 Sept '15 3 Sept '15 100,776 15 September '15 0 Direct works design budget

71 Traffic Lights Mounted on the Guideway 15 October '15 18,348 10 November 2015 0

72 Flagging at Seaview 17 April '15 306,916 10 November 2015 0

73 Barnet Right Out at Westwood Honda 7 October '15 0

74 Inlet Frontage Road 29 May '15 43,620 31 July '15 0

75 Hoy Creek Contamination Removal 8 October '15 378,980 22 October '15 0 Coquitlam Parking Budget

76

Implementation of Dual 700MHz / 800MHz Radio Band to be Compatible with E-Comm Requirements Oct 15 150,012 19 October '15 0

77 Minor Roadworks and Paving Changes November 15 327,901 10 November 2015 0

78 Non-Standard Walkway Covers 6 November '15

79 Station Signage Sept to Nov 2015 183,032 10 November 2015 0

80 Deletion of the OMF Fence Intrusion Alarm 6 October '15 -101,500 10 November 2015 0

81 Removal of South Portal Fence

82 Telus Conflict at P5-16 October '15 860,128 24 November 2015 0

Wrap-up of all outstanding utility and contaminate issues

VEHICLE CHANGES

Test Equipment - Pass Door Test Rig

CO 009 3 June '14 3 June '14 45,808 3 June '14

Credit from audit

AUDIT -200,333 unknown

TRA-2015-53862
3 2015-12-09
 EVERGREEN LINE Change Register

CO 010 Spare Sidewall Patches 15,910 unknown

CO 011 Seat Mounting Bracket Change 18,940 unknown

CO 012 PCU Bottom Cover Hinge 39,887 unknown

CO 013 Flex Area Window Modification 11,621 4 May '15

CO 014 Initial Contract Spares 274,873 30 April '15 Change 15 is cancelled

CO 016 Hostler Manual and Training 84,211 25 June '15

CO 017 Propulsion System Spares 466,244 9 Sept '15

CO 018 Propulsion System Training and Manual 9 Sept '15

CO 019 Seat to Sidewall Impact Test 23,640 9 Sept '15

CHANGE SUMMARY

Current Value of EGRT Changes $7,961,363

Current Value of Vehicle Changes $2,780,801

TRA-2015-53862
4 2015-12-09
 EVERGREEN LINE Change Register

Preliminary Description Change Request Cost of Initial Final Paid evaluation Change Extension Remarks
Change Issued Preparing Change Change Certificate Issued of time
Instruction Change Report Report days
Report Received Received

Number Date $ Date Date $ Date

4 Completion of Port Moody Bus Loop and Parking as a Permanent Facility 11 April '13 included 16 Sept '13 10 Oct '13 3,242,707 16 October 2013 0
Rev 1 15 Feb 16
From Project Budget for Parking and Bus
Loops. Project estimate did not include
additional fill due to ground conditions as
established during design, an additional
cost of $831,065. Electrical evalaution
received no revision to Change Value

58 Inlet Station Public Art Tiling 29 May '15 68,318 17 July '15 0 Revised for additional tiling
Rev 1 15 Feb 16

79 Station Signage Sept to Nov 2015 #REF! 10 November 2015 0 Revised 15 February 2016
Rev 1 15 Feb 16
81 Small Works Changes Related to Fencing 5 May '15 37,926 15 Feb 2016 0 A collection of minor changes
related to fencing

82 Telus Conflict at P5-16 October '15 860,128 24 November 2015 0 Wrap-up of all outstanding utility and
contaminate issues

83 Minor Works Changes Requested by the Province 3 Nov '15 - Feb '16 81,095 22 Feb 2016

1 2016-03-07
TRA-2016-60929
 Order F17-45

MINISTRY OF TRANSPORTATION AND INFRASTRUCTURE

Meganne Cameron
Adjudicator

October 12, 2017

CanLII Cite: 2017 BCIPC 50

Quicklaw Cite: [2017] B.C.I.P.C.D. No. 50

Summary: A journalist requested access to records related to changes to a contract

between the Ministry of Transportation and Infrastructure and a third party. The Ministry
provided records but refused to disclose some information under ss. 17 (harm to the
financial or economic interests of a public body) and 21(1) (harm to third party business
interests) of the Freedom of Information and Protection of Privacy Act. While the inquiry
was underway, the Ministry reconsidered its decision and determined that all of the
information could be disclosed. The third party argued that s. 21(1) applied because
disclosure could reasonably be expected to harm its business interests. The adjudicator
confirmed the Ministrys decision that s. 21(1) did not apply and ordered the Ministry to
disclose the information to the applicant.

Statutes Considered: Freedom of Information and Protection of Privacy Act, s. 21.

Authorities Considered: BC: Order 01-36, 2001 CanLII 21590 (BC IPC); Order F08-
03, 2008 CanLII 13321 (BC IPC); Order 00-22, 2000 CanLII 14389 (BC IPC); Order F05-
05, 2005 CanLII 14303 (BC IPC); Order F15-53, 2015 BCIPC 56 (CanLII); Order F16-
17, 2016 BCIPC 19 (CanLII); Order F16-39, 2016 BCIPC 43; Order 04-06, 2004 CanLII
34260 (BC IPC); Order 01-20, 2001 CanLII 21574 (BC IPC); Order 03-15, 2003 CanLII
49185 (BC IPC);Order 01-39, 2001 CanLII 21593 (BC IPC); Order F13-22, 2013 BCIPC
29; Order F17-14, 2017 BCIPC 15; Order F13-20, 2013 BCIPC 27 (CanLII).

Cases Considered: Ontario (Community Safety and Correctional Services) v. Ontario

(Information and Privacy Commissioner) 2014 SCC 31 (CanLII).
Order F17-45 Information & Privacy Commissioner for BC 2
______________________________________________________________________

INTRODUCTION

[1] This inquiry arises out of two requests made by the applicant, a journalist,
for records relating to changes to a construction project contract between the
Ministry of Transportation and Infrastructure (Ministry) and a third party.

[2] The Ministry disclosed the records but withheld some information pursuant
to ss. 17 (harm to the financial or economic interests of a public body) and
21(1) (harm to third party business interests) of the Freedom of Information and
Protection of Privacy Act (FIPPA). The applicant asked the Office of the
Information and Privacy Commissioner (OIPC) to review the Ministrys decisions
to withhold the information.

[3] Mediation by the OIPC did not resolve the issues in dispute and the
applicant requested that they proceed to inquiry. The OIPC gave the third party
notice of the inquiry pursuant to s. 54(b) of FIPPA.

[4] While the inquiry was underway, the Ministry reconsidered its original
decision. It decided that ss. 17 and 21(1) did not apply and the information could
be disclosed to the applicant. The third party disagreed with the Ministrys new
decision and argued that s. 21(1) applies to all of the information in dispute.

[5] The Ministry, the applicant and the third party all provided inquiry
submissions.

ISSUE

[6] Given that the Ministry no longer relies on s. 17, the only issue in this case
is whether the Ministry is required to refuse to disclose the information in dispute
to the applicant under s. 21(1) of FIPPA. Section 57(3)(b) of FIPPA places the
burden on the third party, to prove that the applicant has no right of access to the
disputed information.

DISCUSSION

Information in dispute

[7] The applicants requests relate to information about the construction of the
Evergreen Line, an 11-kilometre extension of the SkyTrain in Metro Vancouver
that opened in 2016. Specifically, the applicant made two requests for the
change order log showing a description and the timing and cost of changes
to the contract between the Ministry and the third party contractor for the project.
Order F17-45 Information & Privacy Commissioner for BC 3
______________________________________________________________________

[8] In response to the requests, the Ministry provided the applicant five pages
containing information in a table format with 10 columns and 81 rows. The
column headings are:

Preliminary Change Instruction;

Description;
Change Request Issued:
Cost of Preparing Change Report;
Initial Change Report Received;
Final Change Report Received;
Paid Evaluation;
Change Certificate Issued;
Extension of time days; and
Remarks.

[9] The only information that has not already been disclosed to the applicant
is most of the entries in the Paid Evaluation column as well as some of the
entries in the Description and Remarks columns.

Harm to Third Party Business Interests s. 21

[10] Section 21(1) of FIPPA requires public bodies to refuse to disclose

information when it could reasonably be expected to harm the business interests
of a third party. The portions of s. 21(1) that are relevant in this case state:

21(1) The head of a public body must refuse to disclose to an applicant

information
(a) that would reveal

(ii) commercial, financial, labour relations, scientific or technical
information of or about a third party,
(b) that is supplied, implicitly or explicitly, in confidence, and
(c) the disclosure of which could reasonably be expected to
(i) harm significantly the competitive position or interfere
significantly with the negotiating position of the third party,

(iii) result in undue financial loss or gain to any person or
organization,

[11] Each of the elements set out in ss. 21(1)(a), (b) and (c) must be satisfied
before a public body is required to refuse disclosure under s. 21(1). I will
address ss. 21(1)(a), (b) and (c) in turn.
Order F17-45 Information & Privacy Commissioner for BC 4
______________________________________________________________________

Commercial or financial information s. 21(1)(a)(ii)

[12] Section 21(1)(a)(ii) applies to, among other things, commercial or financial
information of or about a third party. FIPPA does not define commercial or
financial information. However, previous orders have held that:

commercial information relates to commerce, or the buying, selling,

exchanging or providing of goods and services. The information does
not need to be proprietary in nature or have an actual or potential
independent market or monetary value.1

hourly rates, global contract amounts, breakdowns of these figures,

prices, expenses and other fees payable under contract are both
commercial and financial information.2

[13] The Ministry submits that the information sought by the applicant relates
to the exchange of services from the third party for payment by the Ministry.3 The
third party submits that the information withheld is pricing information.4

[14] I find that that s. 21(1)(a)(ii) of FIPPA applies to all of the information in
dispute. It is information that relates to services that the third party provided,
or would provide, in exchange for payment and as such, it is either commercial
and/or financial information of or about the third party.

Supplied in confidence s. 21(1)(b)

[15] For s. 21(1)(b) to apply, the information must have been supplied, either
implicitly or explicitly, in confidence. This is a two-part analysis. The first step is
to determine whether the information was supplied to a public body. The second
step is to determine whether the information was supplied in confidence5.

Supplied

[16] Previous BC orders have stated that information contained in an

agreement negotiated between a public body and a third party will not normally

1
Order 01-36, 2001 CanLII 21590 (BC IPC) at para. 17; Order F08-03, 2008 CanLII 13321 (BC
IPC) at para. 62.
2
Order 00-22, 2000 CanLII 14389 (BC IPC) at p. 4, Order F05-05, 2005 CanLII 14303 (BC
IPC) at para. 46; Order F15-53, 2015 BCIPC 56 (CanLII), at para. 11, and Order F16-17, 2016
BCIPC 19 (CanLII), at para. 24.
3
Ministrys submission, para. 19.
4
Third party initial submission, para. 1.
5
Order F16-39, 2016 BCIPC 43 at para. 19.
Order F17-45 Information & Privacy Commissioner for BC 5
______________________________________________________________________

qualify as information that has been supplied to the public body. 6 They have
also said that the fact that a term from a proposal may be incorporated
unchanged in a contract does not mean that the contract term is supplied
information as opposed to negotiated information. For instance, former
Commissioner Loukidelis said in Order 03-15:

It would hardly be surprising that terms in a contract arrived at resemble,

or are even the same as, terms in the contractors proposal. It might well
be more unusual for the contract arrived to be completely out of step with
the terms of the contractors proposal. A successful proponent on an RFP
may have some or all of the terms of its proposal incorporated into a
contract. As has been said in past orders, there is no inconsistency in
concluding that those terms have been negotiated since their presence
in the contract signifies that the other party agreed to them.7

[17] There are two exceptions to this general rule:

Where the information the third party provided was immutable and
thus not open or susceptible to negotiation and was incorporated into
the agreement without change; or

Where the information in the agreement could allow someone to draw

an accurate inference about underlying information of, or about, a third
party that had been supplied in confidence but which does not expressly
appear in the agreement.8

[18] In its submission the Ministry says that the information the third party
argues should be withheld was negotiated and shows the change order details
between the Ministry and the Third Party regarding the Evergreen Line and the
original contract9. The third party did not specify whether the information in
question was supplied or negotiated in its submissions and it did not offer
evidence to suggest one of the exceptions noted above applied.

[19] I have considered the content of the records and they support the
Ministrys assertion that the information in dispute was negotiated, rather than
supplied. First, there are entries in the Remarks column that suggest that the
information in dispute was negotiated. For example, comments such as it was
agreed that inflation would not be included, awaiting clarification, and agreed,

6
Order 04-06, 2004 CanLII 34260 (BC IPC) at paras. 45-46. See also Order 01-20, 2001 CanLII
21574 (BC IPC) at para. 81.
7
Order 03-15, 2003 CanLII 49185 (BC IPC), at para. 66.
8
For example: Order 01-20, 2001 CanLII 21574 (BC IPC) at para. 81; Order 01-39, 2001 CanLII
21593 (BC IPC) at para. 50; Order F13-22, 2013 BCIPC 29 at para. 17; and Order F17-14, 2017
BCIPC 15 at para. 9.
9
Ministry Submission, paras. 15 and 24.
Order F17-45 Information & Privacy Commissioner for BC 6
______________________________________________________________________

waiting for change report suggest that the withheld information was negotiated,
or open to negotiation. Second, the dates in the columns show that while some
changes were finalized quickly, for others over a year passed between the
change request and the final change report. It is unlikely that there would be such
large period of time between the initial request and the final report if the third
party had simply provided the information to the Ministry. The passage of time
suggests that there was a period of negotiation between the parties about the
information in dispute.

[20] In conclusion, I find that the information in dispute was not supplied under
s. 21(1)(b). Given that s. 21(1)(b) does not apply, it is not necessary for me to
consider whether the information was provided in confidence. However, for the
sake of completeness, I will continue.

In Confidence

[21] As previous BC Orders have stated, the test for whether information was
supplied, explicitly or implicitly, in confidence is objective, and the question is
one of fact; evidence of the third partys subjective intentions with respect to
confidentiality is not sufficient.10 The determination of whether information is
confidential depends on its contents, its purposes and the circumstances under
which it was compiled.11

[22] The Ministry does not make a submission regarding the confidentiality
of the information at issue. In its initial submission and reply the third party
argues that the information in dispute should not be disclosed because it is
commercially sensitive.12 However, the third party does not provide submissions
or evidence that there was any mutual understanding or agreement with the
Ministry that the information in dispute is confidential. As noted in Order F16-39,
a public bodys contracts are subject to FIPPA and the Ministry would not have
been in a position to promise absolute confidentiality regarding the terms of its
contract, or any amendments. In conclusion, I am not persuaded that any of the
information in dispute was supplied, implicitly or explicitly, in confidence under
s. 21(1)(b).13

[23] As I have found that s. 21(1)(b) does not apply to any of the information in
dispute, it is not strictly necessary for me to consider whether disclosing the
information could reasonably be expected to result in the harm under s. 21(1)(c).

10
Order F16-39, 2016 BCIPC 43 (CanLII) at para. 27; Order F13-20, 2013 BCIPC 27 (CanLII) at
para. 22; Order 01-36, 2001 CanLII 21590 (BC IPC) at para. 23.
11
Order F13-20, 2013 BCIPC 27 (CanLII) at para 27.
12
Third Party Initial Submission.
13
Order F16-39, 2016 BCIPC 43 (CanLII) at para. 31.
Order F17-45 Information & Privacy Commissioner for BC 7
______________________________________________________________________

However, for completeness, I will briefly address the third partys argument
regarding harm.

Reasonable Expectation of Harm s. 21(1)(c)

[24] The Supreme Court of Canada said the following about the standard of
proof for exceptions that use the language reasonably be expected to harm and
the type of evidence required to meet that standard:

This Court in Merck Frosst adopted the reasonable expectation of

probable harm formulation and it should be used wherever the could
reasonably be expected to language is used in access to information
statutes. As the Court in Merck Frosst emphasized, the statute tries to
mark out a middle ground between that which is probable and that which
is merely possible. An institution must provide evidence well beyond or
considerably above a mere possibility of harm in order to reach that
middle ground This inquiry of course is contextual and how much
evidence and the quality of evidence needed to meet this standard will
ultimately depend on the nature of the issue and inherent probabilities or
improbabilities or the seriousness of the allegations or
consequences.14

The third party says the following about the harm that would result from
disclosure of the information in dispute:

1. As a construction company, we gain most of our work through

competitive bidding. Disclosure of any of our pricing information
(commercially sensitive information) will inform our competitors of
some of our pricing details and may compromise our competitive
advantage. We are presently bidding work similar to the Evergreen
Line Rapid Transit Project in at least three other active procurements
within Canada.
2. Disclosure of pricing information within the construction industry is
considered anti-competitive and may infringe on antitrust or
competition laws.
3. The resultant erosion of competitiveness within an industry would
potentially harm the procuring parties (often governments).15

[25] The comments above are the entirety of the third partys submissions
regarding harm. I note that the third party states that the disclosure may
compromise its competitive advantage and would potentially harm the procuring

14
Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy
Commissioner) 2014 SCC 31 (CanLII) at para. 54. Reference is to Merck Frosst Canada v.
Canada (Health), 2012 SCC 3 (CanLII) at para. 94.
15
Third Party Initial Submission, paras. 1-3.
Order F17-45 Information & Privacy Commissioner for BC 8
______________________________________________________________________

parties. The argument the third party has provided is vague, speculative and
unsupported by evidence. It does not establish a clear and direct link between
disclosure of the information in question and a reasonable expectation of harm.
Without further supporting submissions or evidence, I am not persuaded by what
the third party says about harm. I find that it has not met the burden of
establishing that disclosure of the information in dispute could reasonably be
expected to cause any of the harms listed in s. 21(1)(c).

Summary s. 21(1)

[26] In summary, I find that the withheld information is commercial and/or

financial information of or about a third party, so s. 21(1)(a)(ii) applies. However,
I find that it was not supplied, implicitly or explicitly, in confidence so s. 21(1)(b)
does not apply. I also find that disclosure of the information could not reasonably
be expected to cause any of the harms in s. 21(1)(c). The third party has not met
its burden of proof regarding s. 21(1). I find that s. 21(1) does not apply to the
information in dispute in this case.

CONCLUSION

[27] For the reasons given above, under s. 58 of FIPPA, the Ministry is not
required to refuse access to the information in dispute under s. 21(1). I require
the Ministry to give the applicant access to the information that is at issue by
November 23, 2017. The Ministry must concurrently copy the OIPC Registrar of
Inquiries on its cover letter to the applicant, together with a copy of the records.

October 12, 2017

ORIGINAL SIGNED BY

Meganne Cameron, Adjudicator

OIPC File Nos.: F16-65784 and F16-65791

 EGRT Construction
500 745 Thurlow Street
Vancouver, British Columbia
Canada V6E 0C5

Telephone: (604) 662-3555

June 29, 2017 EGRT Ref: 511325-00000-SWSL-30CB-0109

Letter Classification: Information

Office of the Information and Privacy Commissioner

4th Floor 947 Fort Street
Victoria, BC V8V 3K3
Attention: Cindy Hamilton, Registrar of Inquiries

Email: chamilton@oipc.bc.ca

Dear Madam:

Re: Evergreen Line Rapid Transit Project (EGRT Project)

Subject: Inquiry under Part 5 of the Freedom of Information and Protection of
Privacy Act (FIPPA) between An Applicant and the Ministry of
Transportation and Infrastructure (public body) and a Third Party
OIPC File No.: F16-65784 & F16-65791 Public Body File No.: TRA-
2016-60929 & TRA-2015-53862

We are writing in response to your letter dated 27 June 2017 on the subject of Inquiry
under Part 5 of the Freedom of Information and Protection of Privacy Act
(FIPPA) between An Applicant and the Ministry of Transportation and
Infrastructure (public body) and a Third Party OIPC File No.: F16-65784 & F16-
65791 Public Body File No.: TRA-2016-60929 & TRA-2015-53862.

EGRT Construction is a Third Party to the Inquiry. As such we have reviewed the
documents in dispute and maintain our position that the pricing portion of these
documents should be withheld from disclosure for the following reasons:
1. As a construction company, we gain most of our work through competitive
bidding. Disclosure of any of our pricing information (commercially sensitive
information) will inform our competitors of some of our pricing details and may
compromise our competitive advantage. We are presently bidding work similar
to the Evergreen Line Rapid Transit Project in at least three other active
procurements within Canada.
2. Disclosure of pricing information within the construction industry is considered
anti-competitive and may infringe on antitrust or competition laws.
3. The resultant erosion of competitiveness within an industry would potentially
harm the procuring parties (often governments).

Please contact the undersigned if you require further information.

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Sincerely,

EGRT Construction

Jeff Spruston, P.Eng

Primary Contractors Representative

cc: Applicant: bob.mackin@me.com

Counsel for Public Body: Troy Taillefer

Legal Services Branch
Ministry of Justice
1001 Douglas Street
PO Box 9280 Stn Prov Govt
Victoria, BC V8W 9J7
Email: troy.taillefer@gov.bc.ca

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