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Document
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PO-1901
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Institution/HIC
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Ontario Realty Corporation
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Summary
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NATURE OF THE APPEAL: The Ontario Realty Corporation (the ORC) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to an appraisal report dated May 30, 1999 pertaining to 12 cottage lots located on various lakes in the Thunder Bay district. The requester subsequently verified with the ORC that the request related to nine, rather than 12 lots. The ORC received a second request from the appellant seeking access to an Appraisal Report on Private Recreational Camps prepared for the Ministry of Natural Resources and dated August 1998. The requester subsequently verified with the ORC that the request related to the "Benchmark Summary Values" appraisal report for Northwestern Ontario, designated as MNR file 888/98. The ORC located the records responsive to both requests and denied access to them, in their entirety, claiming the application of the following exemptions contained in the Act : section 13(1) - advice or recommendations section 18(1)(a) - valuable government information sections 18(1)(c), (d) and (e) - economic and other interests The requester, now the appellant, appealed the Ministry's decision to deny access to both of the records. This office opened appeal file PA-000213-1 in relation to the first request and appeal file PA-000255-1 for the second. During the mediation stage of the appeal, the appellant also raised the possible application of the "public interest override" contained in section 23 of the Act . The parties were unable to resolve the issues in dispute, the appeals were moved into the inquiry stage of the appeals process. I decided to seek the representations of the ORC, initially and received submissions from it, which were shared, in their entirety, with the appellant. The appellant also made representations in response to the Notice, which were then shared with the ORC. Finally, the ORC was invited to, and did, make submissions by way of reply. The records at issue consist of an Appraisal Report relating to nine cottage lots in the Thunder Bay district (the Cottage Lot Report) and an Appraisal Report relating to five categories of recreational camp sites in the Districts of Rainy River, Kenora and Thunder Bay (the Benchmark Report). DISCUSSION: VALUABLE GOVERNMENT INFORMATION/ECONOMIC AND OTHER INTERESTS OF AN INSTITUTION The ORC submits that both of the Appraisal Reports which comprise the records at issue in these appeals are exempt from disclosure pursuant to sections 18(1)(a), (c), (d) and (e) of the Act . These sections provide: (1) A head may refuse to disclose a record that contains, (a) trade secrets or financial, commercial, scientific or technical information that belongs to the Government of Ontario or an institution and has monetary value or potential monetary value; . . . (c) information where the disclosure could reasonably be expected to prejudice the economic interests of an institution or the competitive position of an institution; (d) information where the disclosure could reasonably be expected to be injurious to the financial interests of the Government of Ontario or the ability of the Government of Ontario to manage the economy of Ontario; (e) positions, plans, procedures, criteria or instructions to be applied to any negotiations carried on or to be carried on by or on behalf of an institution or the Government of Ontario; Sections 18(1)(c) and (d) Section 18(1)(c) provides institutions with a discretionary exemption which can be claimed where disclosure of information could reasonably be expected to prejudice the economic interests of an institution or the position of an institution in the competitive marketplace (Order P-441). To establish a valid exemption claim under section 18(1)(d), the ORC must demonstrate a reasonable expectation of injury to the financial interests of the Government of Ontario or the ability of the Government of Ontario to manage the economy of Ontario (Orders P-219, P-641 and P-1114). In Order PO-1747, Senior Adjudicator David Goodis stated: The words "could reasonably be expected to" appear in the preamble of section 14(1), as well as in several other exemptions under the Act dealing with a wide variety of anticipated "harms". In the case of most of these exemptions, in order to establish that the particular harm in question "could reasonably be expected" to result from disclosure of a record, the party with the burden of proof must provide "detailed and convincing" evidence to establish a "reasonable expectation of probable harm" [see Order P-373, two court decisions on judicial review of that order in Ontario (Workers' Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464 at 476 (C.A.), reversing (1995), 23 O.R. (3d) 31 at 40 (Div. Ct.), and Ontario (Minister of Labour) v. Big Canoe , [1999] O.J. No. 4560 (C.A.), affirming (June 2, 1998), Toronto Doc. 28/98 (Div. Ct.)]. Applying this reasoning, in order to establish the requirements of the sections 18(1)(c) or (d) exemption claims, the ORC must provide detailed and convincing evidence sufficient to establish a reasonable expectation of probable harm as described in these sections resulting from disclosure of the records. The ORC submits that the disclosure of the information contained in the reports can reasonably be expected to harm the economic interests or competitive position of the ORC or to harm the financial interests of the Government of Ontario. It specifically argues that: . . . one of the main responsibilities of the ORC is the disposal of real property owned by the Government of Ontario. The value obtained for real property sold, subject to certain exceptions, is to be maximized. With certain exceptions, it is generally in the financial interests of the Government and in the public interest for the value of such sales to be maximized. Value is maximized when proposals or offers to purchase are made ba
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Legislation
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Subject Index
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Signed by
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Donald Hale
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Published
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May 04, 2001
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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