British Columbia Investment Management Corporation

Order F22-39

BRITISH COLUMBIA INVESTMENT MANAGEMENT CORPORATION

Ian C. Davis

Adjudicator

August 17, 2022

Cite:

2022 BCIPC 44

Quicklaw Cite: [2022] B.C.I.P.C.D. No. 44

Summary: The applicant made a request under the Freedom of Information and

Protection of Privacy Act (FIPPA) to the British Columbia Investment Management

Corporation (BCI) for copies of 2014-2015 BCI employee engagement and satisfaction

survey reports, including results and analysis. BCI withheld the responsive records and

information on the basis of common law case-by-case privilege and ss. 13(1) (advice or

recommendations), 17(1) (harm to financial or economic interests of a public body),

21(1) (harm to business interests of a third party) and 22(1) (unreasonable invasion of a

third party’s personal privacy) of FIPPA. The adjudicator concluded that Division 2 of

Part 2 of FIPPA is a complete code of exceptions to disclosure abrogating case-by-case

privilege, so BCI was not entitled to rely on that privilege as an access exception. The

adjudicator then determined that BCI was authorized to withhold most of the disputed

information under s. 13(1), but that it was not authorized or required to withhold the

balance of the information under the other exceptions BCI applied.

Statutes Considered: Freedom of Information and Protection of Privacy Act, ss. 2(1),

4(2), 13(1), 13(2)(a), 13(2)(b), 13(2)(c), 13(2)(d), 13(2)(g), 13(2)(i), 17(1), 21(1)(c)(i) and

21(1)(c)(iii).

INTRODUCTION

[1]

An individual (applicant) made a request under the Freedom of

Information and Protection of Privacy Act (FIPPA) to the British Columbia

Investment Management Corporation (BCI) for access to records. Specifically,

the applicant requested access to all BCI “employee engagement and

satisfaction survey reports for 2014 and 2015, including, but not limited to,

employee feedback and analysis of results.”¹

¹Email from the applicant to BCIT dated January 7, 2016.

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[2]

BCI withheld the requested records and information under ss. 13(1)

(advice or recommendations), 17(1) (harm to financial or economic interests of a

public body), 21(1) (harm to business interests of a third party) and 22(1)

(unreasonable invasion of a third party’s personal privacy) of FIPPA.²

[3]

The applicant asked the Office of the Information and Privacy

Commissioner (OIPC) to review BCI’s decision. Mediation did not resolve the

matter and it proceeded to this inquiry. BCI then sought permission from the

OIPC to add as an inquiry issue whether BCI is authorized to withhold the

disputed records on the basis of case-by-base privilege. The OIPC granted BCI’s

request.³

[4]

Pursuant to s. 54(b) of FIPPA, the OIPC invited a third party to participate

in this inquiry, but it chose not to make submissions.⁴

ISSUES AND BURDEN OF PROOF

[5]

The issues in this inquiry are:

1. Is BCI authorized to refuse access to the disputed records on the basis

of common law case-by-case privilege?

2. Is BCI authorized under ss. 13(1) and 17(1) to refuse access to the

information it withheld under those sections?

3. Is BCI required under ss. 21(1) and 22(1) to refuse access to the

information it withheld under those sections?

[6]

The burden of proof is on BCI to show that ss. 13(1), 17(1), 21(1) and

case-by-case privilege apply.⁵The applicant has the burden to show that

disclosure of personal information would not be an unreasonable invasion of a

third party’s personal privacy under s. 22(1).⁶However, BCI bears the initial

burden to show that the information in dispute under s. 22(1) is personal

information.⁷

BACKGROUND

[7]

BCI was established in 2000 under the Public Sector Pension Plans Act to

provide investment management services to public sector bodies designated by

²Investigator’s Fact Report at paras. 2-5 and 9.

³Investigator’s Fact Report at paras. 8-9.

⁴Email from the third party to the OIPC dated February 24, 2022.

⁵FIPPA, s. 57(1); R. v. Valkonen, 2004 ABQB 322 at para. 32 (regarding case-by-case privilege).

⁶FIPPA, s. 57(2).

⁷Order 03-41, 2003 49220 (BC IPC) at paras. 9-11.

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the government of British Columbia.⁸Its clients include 12 public sector pension

plans, three insurance funds, and various special purpose funds. BCI generates

the investment returns that help its institutional clients build a financially secure

future for their beneficiaries.⁹BCI manages over $100 billion of net assets.

[8]

In September 2014, a new Chief Executive Officer and Chief Investment

Officer (CEO/CIO) started at BCI. Shortly after his arrival, the CEO/CIO

articulated a proposal for a new business strategy (Strategy).

[9]

BCI identified employee engagement as an important feature of

successfully implementing the Strategy. In 2014-2015, BCI engaged a consultant

(Consultant) to assist it in developing and implementing an employee

engagement survey and to provide insight and analysis relating to the survey

results. The Consultant conducted the survey and provided reports to BCI

presenting and analyzing the results. BCI conducted a subsequent employee

survey in 2016.

RECORDS AND INFORMATION IN DISPUTE

[10] There are 660 pages of disputed records in the package before me.

Based on my review, I find that the disputed records are reports created by the

Consultant for BCI that present and analyze the results of the 2014-2015

employee engagement survey.

[11] I find that the disputed information in the records falls into the following

categories,¹⁰which I will use for the purposes of my analysis below:

 survey questions asking the survey participants to indicate the extent to

which they agree with a statement;¹¹

 survey results expressed in various ways including statements, figures,

percentages and graphs, indicating how the survey participants

⁸The information in this background section is based on the evidence, which the applicant does

not contest and I accept, in Affidavit #1 of BCI’s Executive Vice-President (EVP) at paras. 7-15.

⁹BCI also made submissions about how it is distinguishable in several ways from other public

bodies, which the applicant describes as an attempt to gain “special status” (applicant’s

submissions at para. 7). I have considered those submissions as context for this inquiry, while

recognizing that BCI is listed as a public body in Schedule 2 of FIPPA and each case is to be

decided on its own facts.

¹⁰As is often the case, different categories of information may overlap within individual records.

¹¹Records at pp. 13, 19-40, 44-86, 100-104, 165-188, 190, 193, 195, 198-199, 202-203, 205,

207, 259, 267, 272, 277-278, 286-288, 292-294, 296-303, 305-308, 310-332, 335-337, 339-346,

349-351, 353-360, 364, 366, 373, 377, 379, 386, 390, 392, 399, 403, 405, 412, 416, 418, 425,

429, 431, 438, 442, 444, 451, 455, 457, 464, 468, 470, 477, 481, 483, 490, 494, 496, 503, 506-

508, 510-517, 520-522, 524-531, 534-536, 538-545, 548-550, 552-559, 561-583, 586-588, 590-

597, 600-602, 604-611, 614-616, 618-625, 628-630, 632-639, 649-651 and 653-660.

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responded in the aggregate to particular survey questions or survey

topic areas;¹²

 verbatim written comments from survey participants in response to

open-ended invitations for comments;¹³

 the Consultant’s views about the survey results and the areas BCI

should focus on for improvement;¹⁴

 the Consultant’s background explanations about concepts relating to the

survey and aspects of the survey methodology, including survey

objectives, the level of participation, how to interpret certain charts, why

the Consultant measures certain things, and how certain scores are

calculated;¹⁵

 benchmark information indicating the average survey results of other

employers, which the Consultant used to compare BCI’s results;¹⁶and

 miscellaneous, largely non-substantive, information such as the

Consultant’s company name, statements regarding disclosure of the

records, document cover pages, subject headings, formatting and page

numbers.¹⁷

[12] To be clear, as I discuss further below, except for the written comments,

the records do not contain each individual survey participant’s actual responses

to the survey questions. Rather, the records present the survey results in

aggregate and anonymized form and do not identify the individual survey

participants by name or job title. However, some of the survey participants’

written comments refer to individuals by job title.

[13] BCI is withholding all of the records in their entirety under common law

case-by-case privilege and all of the disputed information in its entirety under

s. 13(1) of FIPPA. It is also withholding various parts of the records under

¹²Throughout the Records, but examples include pp. 19-40, 165-172, 247 and 292-303.

¹³Records at pp. 88, 106-164, 209-212, 214, 216, 218-219, 221-222, 224-225, 227, 229-231,

233-234, 236-237 and 239-241. Also, some information on p. 281 would reveal the substance of

the written comments.

¹⁴Records at pp. 18, 43, 103-105, 249, 253, 258-263, 272-277, 280-281 (mostly in purple

comment boxes).

¹⁵Records at pp. 2-3, 8-9, 12-13, 17, 42, 44, 91-92, 244-245, 253-255, 266-267, 288-289, 291-

296, 334-339, 348-353, 362-364, 372-373, 375-377, 385-386, 388-390, 398-399, 401-403, 411-

412, 414-416, 424-425, 427-429, 437-438, 440-442, 450-451, 453-455, 463-464, 466-468, 476-

477, 479-481, 489-490, 492-494, 502-503, 505-510, 519-524, 533-538, 547-552, 585-590, 599-

604, 613-618, 627-632, 641-642 and 648-653 (many of these pages duplicate information).

I have highlighted the information in a copy of the Records that the OIPC will provide to BCI with

this order.

¹⁶The benchmark information appears throughout the Records in many forms, but examples

(many of which are repeated in the same form on multiple pages) include pp. 4, 10, 12-13, 15, 90,

94-98, 100-102, 165-180, 191, 246-247, 249, 262-263, 268, 272, 292-303 and 305-308.

¹⁷This information appears throughout the Records, but a representative example is most of the

information on the cover pages at pp. 1 and 5. I have highlighted the information in this category

in a copy of the Records that the OIPC will provide to BCI with this order.

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ss. 17(1), 21(1) and 22(1) of FIPPA. Since BCI is withholding all of the records in

their entirety on the basis of case-by-case privilege, I will consider that issue first.

I take this approach because if I find that case-by-case privilege applies to all of

the records in their entirety, there is no need to consider whether the other

exceptions also apply to parts of the same records.

COMMON LAW CASE-BY-CASE PRIVILEGE

[14] BCI submits that it is authorized to refuse to disclose all of the disputed

records in their entirety on the basis of case-by-case privilege.¹⁸Case-by-case

privilege is a common law doctrine that protects records from disclosure where

the following criteria, known as the “Wigmore test”, are met:

(1) The communications must originate in a confidence that they will not

be disclosed.

(2) This element of confidentiality must be essential to the full and

satisfactory maintenance of the relation between the parties.

(3) The relation must be one which in the opinion of the community ought

to be sedulously fostered.

(4) The injury that would inure to the relation by the disclosure of the

communications must be greater than the benefit thereby gained for the

correct disposal of litigation.¹⁹

[15] BCI submits that the Wigmore test is satisfied in respect of the disputed

records because of the confidential relationship between BCI and its employees

in relation to the survey.²⁰

[16] It is first important to recognize the statement of FIPPA’s legislative

purposes found in ss. 2(1)(a) and (c). These sections state that FIPPA’s

legislative goals “are to make public bodies more accountable to the public and

to protect personal privacy” by, among other things, “giving the public a right of

access to records” and “specifying limited exceptions to the right of access”.

[17] Section 4(1) establishes the public’s right of access to records. It says

that, subject to s. 4(2), an applicant who makes a request under s. 5 has a “right

of access” to a record in the custody or under the control of a public body,

including a record containing personal information about the applicant. There is

¹⁸BCI’s initial submissions at paras. 61-78.

¹⁹R. v. McClure, 2001 SCC 14 at para. 29. Although the fourth part of the Wigmore test refers to

“litigation”, I am satisfied that the absence of underlying litigation in the access to information

context does not preclude the potential application of case-by-case privilege under FIPPA. The

“benefit for the correct disposal of litigation” part of the test can easily be modified to something

that fits the context, such as benefit gained by public access to the disputed information.

²⁰BCI’s initial submissions at paras. 69-78.

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no question in this case that the disputed records are in BCI’s custody and under

its control.

[18] Section 4(2) states that an applicant’s right of access to a record does not

extend to information that is excepted from disclosure under Division 2 of Part 2

(Division 2), but if that information can reasonably be severed from a record, an

applicant has a right of access to the remainder of the record. Division 2 contains

ss. 12 to 22.1, which specify what s. 2(1)(c) stipulates are “limited exceptions” to

the “right of access”. None of those exceptions mention Wigmore, or case-by-

case, privilege.

[19] The only exception to disclosure in FIPPA that refers to a “privilege” is

s. 14. Section 14 states that the head of a public body may refuse to disclose to

an applicant information that is subject to “solicitor client privilege.” Solicitor-client

privilege protects confidential communications between a lawyer and a client that

relate to the seeking or giving of legal advice.²¹Section 14 has also been held to

encompass litigation privilege for FIPPA purposes.²²Litigation privilege protects

documents produced for the dominant purpose of conducting ongoing or

reasonably apprehended litigation.²³

[20] Although BCI did not argue that solicitor-client privilege or litigation

privilege encompass case-by-case privilege, there is no doubt that neither of

them do so at common law or as components of s. 14. Case-by-case privilege is,

accordingly, not one of the “limited exceptions” to disclosure that the Legislature

has specified in Division 2. This raises the question of whether BCI may

nevertheless, as it contends, rely on case-by-case privilege as a common law

exception to disclosure.

Can BCI rely on case-by-case privilege as a common law exception to

disclosure?

Positions of the parties

[21] BCI submits that it is entitled to rely on case-by-case privilege as an

exception to the “right of access” despite the fact that, as already noted, none of

the access exceptions specify or encompass case-by-case privilege. Specifically,

BCI argues that:

As a common law privilege, case-by-case privilege applies to protect

records from disclosure under [FIPPA]. [FIPPA] does not contain express

language that would abrogate case-by-case privilege, and it should not

have been interpreted to have done so. Rather, recent decisions by the

²¹Solosky v. The Queen, [1980] 1 S.C.R. 821, 1979 9 (SCC) at p. 837 [cited to S.C.R.].

²²College of Physicians of B.C. v. British Columbia (Information and Privacy Commissioner),

2002 BCCA 665 at para. 26 [College].

²³Raj v. Khosravi, 2015 BCCA 49 at para. 20.

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British Columbia Supreme Court and the BCIPC support the recognition

and application of case-by-case privilege in the circumstances of this

inquiry.²⁴

[22] The decisions BCI relies upon are the 2017 decision of the Supreme Court

of British Columbia in Richmond (City) v. Campbell [Richmond],²⁵and OIPC

orders that apply it. In Richmond, the Court held that a public body may rely on

settlement privilege as a basis to withhold information despite the fact that

settlement privilege is not found in FIPPA. Settlement privilege protects

communications made for the purpose of resolving ongoing or anticipated

litigious disputes.²⁶

[23] In response, the applicant submits that case-by-case privilege should not

apply in this case and BCI’s arguments “should stand on their own merits under

the exceptions already written in FIPPA.”²⁷

Analysis and conclusions

[24] Since BCI’s position relies exclusively upon Richmond (and orders that

apply it), I begin with a discussion of that decision. The Court’s analysis in

Richmond of why settlement privilege applies in the context of FIPPA is brief,

with the key paragraphs being as follows:

… This leaves the question of whether the common law settlement privilege

applies to protect an agency from producing documents which it would

otherwise be required to produce under FIPPA.

Section 4 of FIPPA gives an individual a right of access to a record in the

custody of a public body, but that does not extend to information excepted

from disclosure under Division 2 of that Part of FIPPA. That Division

includes sections 12 through 22.1.

As discussed in para. 38 of Magnotta OCA, settlement privilege is a

fundamental common law privilege, and it ought not to be taken as having

been abrogated absent clear and explicit statutory language. There is an

overriding public interest in settlement. It would be unreasonable and unjust

to deprive government litigants, and litigants with claims against

government or subject to claims by government, of the settlement privilege

available to all other litigants. It would discourage third parties from

engaging in meaningful settlement negotiations with government

institutions.

²⁴BCI’s initial submissions at para. 63.

²⁵2017 BCSC 331 [Richmond].

²⁶See, for example, Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37

[Sable].

²⁷Applicant’s submissions at para. 18.

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FIPPA does not contain express language that would abrogate settlement

privilege and, accordingly, it should not be interpreted to have done so.²⁸

[25] In the third paragraph quoted above, the Court is referring to the 2010

decision of the Ontario Court of Appeal in Liquor Control Board of Ontario v.

Magnotta Winery Corporation [Magnotta].²⁹Magnotta dealt with whether

settlement privilege applies in the context of Ontario’s access to information

legislation. At para. 38 of Magnotta, which Richmond cites, the Ontario Court of

Appeal stated the following:

Further, based on recent judgments of the Supreme Court of Canada,

I understand that fundamental common law privileges, such as settlement

privilege, ought not to be taken as having been abrogated absent clear and

explicit statutory language: see Canada (Privacy Commissioner) v. Blood

Tribe Department of Health, 2008 SCC 44 (), [2008] 2 S.C.R. 574,

[2008] S.C.J. No. 45, at para. 11 [Blood Tribe]; and Lavallee, Rackel &

Heintz v. Canada (Attorney General), 2002 SCC 61 (), [2002] 3

S.C.R. 209, [2002] S.C.J. No. 61, at para. 18 [Lavallee]. While both of these

cases relate to solicitor-client privilege, many of the same considerations

apply to settlement privilege. Section 19 [of Ontario’s freedom of

information statute] does not contain express language that would

abrogate settlement privilege. Accordingly, in my view, it ought not to be so

interpreted.

[26] Magnotta cites Blood Tribe and Lavallee as support for the proposition

that “fundamental common law privileges” ought not to be taken as having been

abrogated absent clear and explicit statutory language.

[27] In Blood Tribe, the Court stated that solicitor-client privilege is

“fundamental to the proper functioning of our legal system.”³⁰This is because the

privilege provides the confidentiality required for clients to speak to their lawyers

openly and honestly, which in turn allows lawyers to better assist their clients,

resulting in improved quality of justice and access to justice.³¹In other words,

solicitor-client privilege is a “fundamental policy of the law” and in the public

interest because it encourages the “free flow of legal advice”.³²

[28] Given the fundamental importance of solicitor-client privilege to the legal

system, the Court held in Blood Tribe that clear and explicit statutory language is

“necessary to permit a regulator or other statutory official to ‘pierce’ the

²⁸Richmond, supra note 25 at paras. 69-72 (paragraph numbers omitted).

²⁹2010 ONCA 681 [Magnotta].

³⁰Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44 at para. 9

[Blood Tribe].

³¹Blood Tribe, ibid. See also Alberta (Information and Privacy Commissioner) v. University of

Calgary, 2016 SCC 53 at para. 34 and General Accident Assurance Company v. Chrusz, 1999

7320 (ON CA) per Doherty J.A.

³²Blood Tribe, ibid at paras. 9-10.

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privilege.”³³Citing Lavallee, the Court set out the following principles of statutory

interpretation:

… legislative language that may (if broadly construed) allow incursions on

solicitor-client privilege must be interpreted restrictively. The privilege

cannot be abrogated by inference. Open-textured language governing

production of documents will be read not to include solicitor-client

documents[.]³⁴

[29] Richmond and Magnotta expanded these principles concerning solicitor-

client privilege to settlement privilege in the context of access to information

legislation. In Magnotta, the Court simply stated that “many of the same

considerations” that justify requiring clear and explicit language to abrogate

solicitor-client privilege also apply to settlement privilege.³⁵In Richmond, the

Court provided more detail, stating, in summary, that by encouraging settlements

settlement privilege, like solicitor-client privilege, “serve[s] the goal of the

effective administration of justice”.³⁶

[30] In Richmond, the Court accepted that settlement privilege, like solicitor-

client privilege, is a “fundamental common law privilege” and therefore clear and

explicit language is required to abrogate it. The Court found that no such clear

and explicit language existed in FIPPA, so settlement privilege had not been

abrogated. The Court concluded from this that a public body could rely on

settlement privilege as a common law exception to disclosure in response to an

access request under FIPPA.

[31] I note, firstly, that Richmond relies heavily on Magnotta, but Magnotta is

distinguishable. The Ontario Court of Appeal held in Magnotta that settlement

privilege is covered by the express language of s. 19 of Ontario’s freedom of

information statute, which sets out an exception to disclosure for a record

“prepared by or for Crown counsel … for use in litigation.”³⁷The Court of Appeal

held that “litigation” includes mediation and settlement discussions, which are

protected by settlement privilege, and that records relating to these discussions

are covered by s. 19. By contrast, in Richmond, the Court found that settlement

privilege did not fit within any of the exceptions set out in FIPPA, so the issue

was whether the public body could rely on settlement privilege as it exists at

common law. Magnotta never considered that issue, so it did not, with respect,

support the reasoning in Richmond.

³³Blood Tribe, ibid at para. 2.

³⁴Blood Tribe, ibid at para. 11, citing Lavallee, Rackel & Heintz v. Canada (Attorney

General), 2002 SCC 61 at para. 18 [Lavallee] and Pritchard v. Ontario (Human Rights

Commission), 2004 SCC 31 at para. 33.

³⁵Magnotta, supra note 29 at para. 38.

³⁶Richmond, supra note 25 at paras. 67 and 71.

³⁷Magnotta, supra note 29 at para. 21.

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[32] I also note that the reasoning in Richmond relies, through Magnotta, upon

Blood Tribe and Lavallee, but those cases focus exclusively on solicitor-client

privilege. Blood Tribe and Lavallee make no reference to settlement privilege at

all. I see no indication in Blood Tribe or Lavallee that the Supreme Court

intended for the principles applied there to be extended to settlement privilege,

as they were in Richmond.

[33] Nor, with deference, did the Court’s statement in Richmond that

settlement privilege “serve[s] the goal of the effective administration of justice”

advance the analysis of whether that privilege applies in the context of FIPPA.

Even if Blood Tribe and Lavallee left open the possibility of extending the

principles set out there beyond the context of solicitor-client privilege, I question

the basis for extending them to settlement privilege in particular. Richmond

recognizes that:

… While both privileges serve the goal of the effective administration of

justice, they are very different. Legal advice privilege serves that goal

through protecting the confidentiality of communications between a lawyer

and client, while settlement privilege serves that goal by encouraging free

discussion between adverse parties towards reaching a settlement and the

terms of any settlement.³⁸

[34] Beyond this, there are other key differences between solicitor-client

privilege and settlement privilege. In Order F22-34, the adjudicator explained

that, unlike solicitor-client privilege, settlement privilege is not as close to

absolute as possible, does not confer a substantive right with constitutional

status,³⁹and it can be set aside where a competing public interest outweighs the

public interest in encouraging settlement.⁴⁰

[35] In other words, despite some commonalities, settlement privilege and

solicitor-client privilege are, as the Court acknowledged in Richmond, “very

different”, and settlement privilege simply does not have the same significance

within the legal system as does solicitor-client privilege. For this reason, and with

respect, I doubt whether it was appropriate in Richmond to apply to settlement

privilege principles of statutory interpretation that were developed exclusively in

relation to solicitor-client privilege.

³⁸Richmond, supra note 25 at para. 67.

³⁹Solicitor-client privilege is a substantive right with constitutional status (see Lavallee, supra

note 34 at para. 21), but I am not aware of any authority bestowing the same status on settlement

privilege.

⁴⁰Order F22-34, 2022 BCIPC 38 at para. 87. See also Betser-Zilevitch v. Prowse Chowne LLP,

2022 ABCA 134 at para. 27, where the Alberta Court of Appeal stated that while settlement

privilege and solicitor-client privilege are both class privileges with strong public policy

justifications, settlement privilege is “perhaps less formidable”.

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[36] Furthermore, in addition to being developed in relation to a significantly

different type of privilege, the principles in Blood Tribe and Lavallee were

developed in response to a different legal issue than the one raised in Richmond.

In Richmond, the issue was whether a public body could limit an access

applicant’s right of access to records under FIPPA by resorting to common law

principles despite the fact that FIPPA sets out “limited exceptions” to disclosure,

with settlement privilege not being one of those exceptions, as the Court itself

found.

[37] Neither Blood Tribe nor Lavallee dealt with the issue of supplementing

legislation by resort to the common law. Rather, they dealt with whether

particular statutory language governing production of documents justified

interference with solicitor-client privilege. Blood Tribe concerned whether the

Personal Information Protection and Electronic Documents Act⁴¹authorized the

federal Privacy Commissioner to compel a government institution to produce

allegedly privileged records to him to review the institution’s privilege claim. The

Supreme Court of Canada held that the statutory language was not clear enough

to permit the Privacy Commissioner to compel production. Similarly, Lavallee

concerned the constitutionality of a Criminal Code provision setting out a

procedure for determining a claim of solicitor-client privilege in relation to

documents seized from a law office under a warrant. These are very different

issues from whether an access to information statute specifying exceptions to the

public’s right of access to records, properly interpreted, permits or precludes a

public body from relying upon a common law privilege.

[38] Given these differences, I doubt that the principles set out in Blood Tribe

and Lavallee ought to have governed the issue in Richmond. Blood Tribe and

Lavallee say that, absent clear and explicit language to the contrary, a statutory

provision authorizing inspection of documents ought not to be interpreted to allow

for the inspection of documents that are subject to solicitor-client privilege. That

is clearly not the same as saying that legislation can only abrogate the common

law if it contains clear and explicit language to that effect.

[39] Indeed, the requirement in Richmond that legislation contain clear and

explicit language to abrogate a fundamental common law privilege is, with

respect, inconsistent with various cases addressing the issue of supplementing

legislation by resorting to the common law. Those cases frame the issue as

whether the legislature intended the statute in question, or some part of it, to be a

“complete”, “comprehensive” or “exhaustive” code abrogating an aspect of the

common law.⁴²

⁴¹S.C. 2000, c. 5.

⁴²See, for example, Review Report 16-12, 2016 NSOIPC 12 at paras. 103-139; Report A-2018-

022, 2018 82316 (NL IPC); Pioneer Corp. v. Godfrey, 2019 SCC 42 at paras. 193-203 per

Côté J. (dissenting in part) [Pioneer]; Process Automation Inc. v. Norstream Intertec Inc. &

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[40] The cases address this issue in accordance with the following principles:

 Whether a statute is a complete code is a question of statutory

interpretation and the issue is whether it is permissible in the

circumstances to supplement the legislation by resorting to the common

law.⁴³

 Statutory interpretation involves determining legislative intent, which is

governed by the “modern principle”: “the words of an Act are to be read

in their entire context and in their grammatical and ordinary sense

harmoniously with the scheme of the Act, the object of the Act, and the

intention of Parliament”.⁴⁴

 The starting point in the analysis is the established principle that

legislatures are presumed not to interfere with the common law.⁴⁵

 However, this presumption can be rebutted where the evidence

establishes that the legislature intended the legislation in question to be

a complete code.⁴⁶“An intention to create an exhaustive code may be

expressly stated in the legislation or it may be implied.”⁴⁷

[41] Richmond does not refer to this required approach. It does not frame the

issue as whether FIPPA is a “complete code” of access exceptions abrogating

settlement privilege. It does not set out or apply the modern principle of statutory

interpretation and, as a result, does not analyze the scheme of FIPPA or its

purposes, which include, notably, “specifying limited exceptions to the right of

access”. Richmond also does not acknowledge the principle that an intention to

create an exhaustive legislative code abrogating a common law privilege may be

implied. It does not explain why the requirement for clear and explicit language,

Arroyave, 2010 ONSC 3987 at paras. 106-111 [Norstream]; Tucci v. Peoples Trust Company,

2020 BCCA 246 at paras. 18-40; Hopkins v. Kay, 2015 ONCA 112 at paras. 29-62. The parties

did not cite these cases. However, I am not bound to rely on the authorities they cited and am

entitled to seek assistance beyond the authorities cited as long as I do not change the issues or

raise new issues: R. v. Badhesa, 2019 BCCA 70 at para. 18.

⁴³Pioneer, ibid at para. 195, citing R. Sullivan, Sullivan on the Construction of Statutes (6th ed.

2014) at p. 549; Review Report 16-12, ibid at para. 112; Report A-2018-022, ibid at para. 65;

Norstream, ibid at para. 107.

⁴⁴Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para. 21, quoting E. Driedger,

Construction of Statutes (2nd ed. 1983) at p. 87. In applying the modern principle, other cases

have considered factors adopted from Sullivan on the Construction of Statutes: Review Report

16-12, ibid at para. 116; Report A-2018-022, ibid at para. 65; Norstream, ibid at para. 108. In my

view, these factors simply elaborate and specify the relevant considerations under the modern

principle and it is not necessary to set them out specifically or address them individually.

⁴⁵Bryan’s Transfer Ltd. v. Trail (City), 2010 BCCA 531 at para. 45; Pioneer, supra note 42 at

para. 197.

⁴⁶Review Report 16-12, supra note 42 at para. 116, citing R. Sullivan, Sullivan on the

Construction of Statutes (5th ed. 2008) at p. 441; Pioneer, ibid; Norstream, supra note 42 at

paras. 107-108.

⁴⁷Hopkins, supra note 42 at para. 30. See also Gendron v. Supply and Services Union of the

Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298, 1990 110 (SCC) at

pp. 1315-1316 [cited to S.C.R.].

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derived from Blood Tribe and Lavallee in relation to a different privilege and a

different legal issue, overrides the Legislature’s ability to abrogate an aspect of

the common law by implied exclusion.

[42] For these reasons, I respectfully question the reasoning and the result in

Richmond, and thus its value as a precedent, on the issue of whether a public

body can rely on a common law exception to disclosure that is not found in

FIPPA itself. In fact, for reasons set out below, I consider it likely that, were the

Court to apply the required analytical framework, it would conclude that the

Legislature intended the access exceptions in Division 2 to be a complete code,

such that settlement privilege is not applicable.

[43] That said, despite the concerns raised above, Richmond has not been

overturned and several BC OIPC orders⁴⁸have applied it, allowing public bodies

to withhold records and information on the basis of common law settlement

privilege. BCI now cites Richmond as authority for allowing it to rely on case-by-

case privilege even though that privilege is not set out in FIPPA. In the

circumstances, I do not consider it open to me to disregard Richmond.⁴⁹

[44] BCI submits that Richmond stands for the proposition that any common

law privilege ought not to be taken as having been abrogated absent clear and

explicit statutory language. However, as discussed above, that is not what

Richmond said. It is clear that Richmond applied a different principle, namely

that, if a privilege is “fundamental”, like solicitor-client privilege, it ought not to be

taken as having been abrogated absent clear and explicit statutory language to

that effect. Richmond and Magnotta, the latter citing Blood Tribe and Lavallee,

specifically refer to “fundamental” common law privileges—the quintessential one

being solicitor-client privilege—not all privileges.

[45] Accordingly, the question here is not, as BCI argues, whether FIPPA

contains clear and explicit language abrogating case-by-case privilege; rather,

the question is whether case-by-case privilege, like solicitor-client privilege and

settlement privilege, is a “fundamental common law privilege”. If it is, then FIPPA

requires clear and explicit language to abrogate it and the question becomes

whether FIPPA contains the necessary language.

[46] As the Wigmore test makes clear, case-by-case privilege is about

relations between parties that in the opinion of the community ought to be

sedulously fostered. However, such relations do not necessarily have anything to

do with the proper functioning of the legal system or the “effective administration

⁴⁸See, for example, Order F21-11, 2021 BCIPC 15; Order F19-20, 2019 BCIPC 22.

⁴⁹Bank of Montreal v. Li, 2020 FCA 22 at para. 37, citing Tan v. Canada (Attorney Genera), 2018

FCA 186 at para. 22 (“an administrative decision-maker is bound to follow applicable precedents

originating from any court”). See also Sanchez Herrera v. Canada (Public Safety and Emergency

Preparedness), 2021 FC 401 at paras. 72-92.

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of justice”, the latter being a key consideration in Richmond’s analysis of the

fundamental importance of settlement privilege. Indeed, in this case, I do not see

how protecting information about the specific relations between BCI and its

employees serves the broader interests of the legal system and the effective

administration of justice.

[47] The same point can be made in relation to the well-established distinction

between class privileges and case-by-case privileges.⁵⁰

[48] Class privileges involve a presumption of non-disclosure based on general

overriding policy reasons, subject only to limited recognized exceptions.⁵¹Class

privileges include solicitor-client privilege, settlement privilege, litigation privilege

and informer privilege.⁵²These each facilitate the proper functioning of the legal

system and the effective administration of justice.

[49] Case-by-case privileges, on the other hand, involve a presumption of

disclosure unless the Wigmore test is satisfied, and each individual claim of that

privilege requires, on the specific facts of each case, weighing competing policy

reasons for and against disclosure.⁵³Case-by-case privileges protect the

confidentiality involved in certain relationships but, unlike class privileges, they do

not generally or necessarily facilitate the proper functioning of the legal system or

the effective administration of justice.

[50] As the comparison to class privileges makes clear, case-by-case privilege

simply does not stand on the same legal footing as class privileges such as

solicitor-client privilege or settlement privilege. Case-by-case privilege cannot be

described as akin to, or similarly as “fundamental” as, class privileges because it

does not have the same significance to the legal system and the administration

of justice.

[51] I conclude from the above considerations that case-by-case privilege is

not a “fundamental common law privilege” like solicitor-client privilege or

settlement privilege. As a result, FIPPA does not need clear and explicit

language to abrogate case-by-case privilege. Instead, it was open to the

Legislature to exclude case-by-case privilege from application under FIPPA by

implication rather than by explicit language.

[52] The question now is whether the Legislature impliedly intended Division 2

to be a complete code of exceptions to disclosure and to exclude common law

⁵⁰See, for example, R. v. Gruenke, [1991] 3 S.C.R. 263, 1991 40 (SCC) [cited to S.C.R.];

Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52 at para. 32; R. v. National Post,

2010 SCC 16 at paras. 42-55.

⁵¹Gruenke, ibid; Lizotte, ibid at para. 32.

⁵²See, for example, Saskatchewan Crop Insurance Corporation v. Rick Peterson Farms Ltd.,

2019 SKCA 19 at para. 21.

⁵³Gruenke, supra note 50 at p. 286.

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case-by-case privilege, or whether it intended for FIPPA to be supplemented by

common law case-by-case privilege. This issue is governed by the general

principles of statutory interpretation already set out above, which I apply here.

The Legislature is presumed to have intended not to interfere with the common

law, but that presumption can be rebutted by evidence of a contrary legislative

intent. The modern principle applies, which involves determining the Legislature’s

intention based on the words, scheme and purposes of FIPPA.

[53] For the reasons that follow, I conclude that Division 2 is a complete code

of access exceptions, and that case-by-case privilege is not one of those

exceptions.⁵⁴

[54] As noted earlier, the only reference to a privilege in Division 2 is to

“solicitor client privilege” in s. 14. This is telling, as it is indicates that the

Legislature turned its mind to the question of what privileges to protect and that it

decided only to protect “solicitor client privilege”.⁵⁵In other words, the

Legislature’s choice to specify “solicitor client privilege” as an exception to the

right of access under s. 14, coupled with the absence of any other exception

referring to a privilege of any kind, indicates the Legislature’s intention to

impliedly exclude case-by-case and other common law privileges not specified in

Division 2.

[55] This interpretation is supported by the scheme of FIPPA and the language

in other provisions. As noted at the outset, s. 4 says that an applicant has a “right

of access” to records in the custody or under the control of a public body, but that

right does not extend to information that is excepted from disclosure “under

Division 2 of this Part”, i.e., Part 2. Section 4, in other words, explicitly derogates

from the right of access with reference only to the exceptions in Division 2. It

does not mention the common law, including any common law privileges. This

indicates that the Legislature intended an applicant’s right of access to be limited

only by the exceptions specified in Division 2, which does not include case-by-

case privilege.

[56] Section 4(2) also says that if information excepted from disclosure under

Division 2 can reasonably be severed from a record, an applicant has a right of

access to the remainder of the record. However, if a public body severed

information from a record on the basis of a case-by-case privilege (or any other

⁵⁴As the analysis indicates, if it were it open to me to do so, I would for the same reasons

conclude that the Legislature intended to exclude settlement privilege from the FIPPA scheme. In

other words, with great respect, I believe the Court in Richmond did not apply the required

analytical principles, including the principles of statutory interpretation, and reached the wrong

result.

⁵⁵By contrast, I note that s. 27(1)(a) of Alberta’s Freedom of Information and Protection of

Privacy Act, R.S.A. 2000, c. F-25, for example, authorizes a public body to refuse to disclose

information subject to “any type of legal privilege”, which clearly indicates the Alberta

Legislature’s intention to include case-by-case privilege as an exception to disclosure.

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common law exception to disclosure not set out in FIPPA), it would be acting

contrary to s. 4(2). That is because s. 4(2) only allows a public body to sever

information excepted from disclosure “under Division 2 of this Part”, which does

not include case-by-case privilege.

[57] Another instructive provision within the scheme of FIPPA is s. 8, which

sets out what a public body must tell an applicant in response to an access

request. Section 8(1)(c)(i) requires the public body to tell the applicant, if access

to the record or to part of the record is refused, the reasons for the refusal and

“the provision of this Act” on which the refusal is based. This section clearly

indicates that the Legislature only intended to authorize or require public bodies

to refuse access to records or information on the basis of provisions of “this Act”,

i.e., FIPPA, and not common law exceptions existing outside of FIPPA.

[58] As with s. 4(2), a public body would not be able to comply with s. 8(1)(c)(i)

if it were relying on case-by-case privilege because there is no “provision of”

FIPPA that refers to or encompasses case-by-case privilege. The Legislature is

presumed to have created a coherent, consistent and harmonious scheme.⁵⁶

However, interpreting FIPPA to allow a public body to rely on case-by-case

privilege conflicts with s. 4(2) and s. 8(1)(c)(i), so a different interpretation is to be

preferred.

[59] A further indication of the Legislature’s intention to create a complete code

of access exceptions is what is now s. 3(7) of FIPPA. This provision, which was

s. 79 of FIPPA when BCI denied access,⁵⁷provides that, “If a provision of this Act

is inconsistent or in conflict with a provision of another Act, this Act prevails

unless the other Act expressly provides that it, or a provision of it, applies despite

this Act.”⁵⁸This section means that, unless another British Columbia statute

creates an access exception not found in FIPPA explicitly overriding FIPPA, the

right of access to records under FIPPA prevails. This is further evidence that the

Legislature intended Division 2 to be a complete code, subject only to express

statutory derogation from that code.

[60] Again, the Legislature’s avowed goal in enacting FIPPA includes making

public bodies “more accountable to the public” by “giving the public a right of

access to records” and “specifying limited exceptions to the right of access”.

Viewed through this lens, it is clear that the Legislature then set out, in Division 2,

a range of “specified” exceptions to disclosure. These exceptions protect

information ranging from local public body confidences (s. 12), to confidential

sources of law enforcement information (s. 15(1)(d)), to personal information the

⁵⁶See, for example, R. v. Summers, 2014 SCC 26 at para. 59.

⁵⁷FIPPA was amended in late 2021 by the Freedom of Information and Protection of Privacy

Amendment Act, S.B.C. 2021, c. 39. The amendments caused the former s. 79 to be renumbered

as s. 3(7).

⁵⁸This is the same language as was used in s. 79 of the former version of FIPPA.

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disclosure of which would unreasonably invade personal privacy (s. 22(1)). It is

difficult to accept that, having clearly turned its mind to the range of potential

access exceptions, and having chosen to set out only the specific exceptions

found in Division 2, the Legislature nevertheless intended to allow an

indeterminate, open-ended basis for limiting the public’s right of access.

[61] For these reasons, it is improbable that, despite its clearly stated intention

to specify limited exceptions to the public’s right of access to records, the

Legislature nonetheless intended to impliedly permit importation of common law

privileges. Put another way, Division 2 expressly specifies the intended “limited

exceptions”, so it would be inconsistent for the Legislature to then implicitly

authorize the importation of common law privileges such as case-by-case

privilege. Doing so would defeat the explicitly stated goal in s. 2(1)(c) of

“specifying limited exceptions to the right of access”.

[62] In saying this, I consider it especially problematic to suggest that FIPPA

should be interpreted to implicitly recognize case-by-case privilege in particular.

As its name suggests, case-by-case privilege requires assessment of the

circumstances of individual cases to decide if it applies. It is implausible to view

such a case-specific privilege as in any meaningful sense a “specified” or

“limited” exception. I doubt that in aiming to specify limited exceptions to the right

of access the Legislature intended to leave it up to public bodies to specify the

particular relationships they consider privileged and that warrant protection

depending on the idiosyncrasies of each matter.

[63] It is for these reasons clear that Division 2 is a comprehensive scheme

and a complete code of exceptions to the public’s right of access to records.

Division 2 is, in other words, legislation that, “while not in direct conflict with the

common law, [is] drafted in such a way as to make it clear that [it is] intended to

comprehensively govern an area, leaving no room for the application of the

common law.”⁵⁹Division 2 comprehensively governs the area of access

exceptions, thus leaving no room for common law case-by-case privilege.

[64] I conclude, having regard to the words, scheme and purposes of FIPPA,

that Division 2 is a complete code of exceptions to disclosure ousting case-by-

case privilege. As a result, BCI is not entitled to rely on case-by-case privilege as

an exception to disclosure in response to the applicant’s access request. It is,

therefore, not necessary for me to consider whether a case-by-case privilege

applies to the disputed records in this case.

SECTION 13 – ADVICE OR RECOMMENDATIONS

[65] BCI also withheld all of the disputed information under s. 13(1). That

section states that the head of a public body may refuse to disclose to an

⁵⁹Tucci, supra note 42 at para. 22.

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applicant information that “would reveal advice or recommendations developed

by or for a public body or a minister.”

[66] The purpose of s. 13(1) is “to ensure that a public body may engage in full

and frank deliberations, including requesting and receiving advice, in confidence

and free of disruption from requests from outside parties for disclosure.”⁶⁰

Section 13 prevents the harm that would occur if a public body’s deliberative

process were subject to excessive scrutiny.⁶¹

[67] Past OIPC orders and court decisions, including judgments of the Court of

Appeal and the Supreme Court of Canada, have established the following

principles for the interpretation of s. 13(1):

 Section 13(1) applies to information that would reveal advice or

recommendations and not only to information that is advice or

recommendations.⁶²

 The terms “advice” and “recommendations” are distinct, so they must

have distinct meanings.⁶³

 “Recommendations” relate to a suggested course of action that will

ultimately be accepted or rejected by the person being advised.⁶⁴

 “Advice” has a broader meaning than “recommendations”.⁶⁵It includes

setting out relevant considerations and options, and providing analysis

and opinions, including expert opinions on matters of fact.⁶⁶Advice can

be an opinion about an existing set of circumstances and does not have

to be a communication about future action.⁶⁷

 “Advice” also includes factual information “compiled and selected by an

expert, using his or her expertise, judgment and skill for the purpose of

providing explanations necessary to the deliberative process of a public

body”.⁶⁸This is because the compilation of factual information and

weighing the significance of matters of fact is an integral component of

an expert’s advice and informs the decision-making process.

⁶⁰Insurance Corporation of British Columbia v. Automotive Retailers Association, 2013 BCSC

2025 at para. 29 [Automotive Retailers Association]. See also John Doe v. Ontario (Finance),

2014 SCC 36 at paras. 43-44.

⁶¹Automotive Retailers Association, ibid at para. 65.

⁶²Order 02-38, 2002 42472 (BC IPC) at para. 135.

⁶³John Doe, ibid at para. 24.

⁶⁴John Doe, supra note 60 at paras. 23-24.

⁶⁵John Doe, ibid at para. 24.

⁶⁶John Doe, ibid at paras. 26-27 and 46-47; College, supra note 22, at paras. 103 and 113.

⁶⁷College, ibid at para. 103.

⁶⁸Provincial Health Services Authority v. British Columbia (Information and Privacy

Commissioner), 2013 BCSC 2322 at para. 94 [PHSA]. See also Automotive Retailers

Association, supra note 60 at paras. 52-53.

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[68] The first step in the analysis is to consider whether the disputed

information would reveal advice or recommendations under s. 13(1). The second

step is to consider whether the disputed information falls within s. 13(2), which

sets out various kinds of records and information that the head of a public body

must not refuse to disclose under s. 13(1), even if that information would reveal

advice or recommendations.

[69] Section 13(3) says that s. 13(1) does not apply to information in a record

that has been in existence for 10 or more years. In this case, the records were

created in 2014 and 2015; therefore, since they are not yet 10 years old, s. 13(3)

does not apply.

Would the disputed information reveal advice or recommendations

developed by or for BCI?

Positions of the parties

[70] BCI submits that all of the disputed information is part of BCI’s deliberative

process regarding the implementation of the Strategy and would reveal advice or

recommendations developed for BCI.⁶⁹It argues that the survey results reflect

the opinions of BCI employees, which qualify as advice or recommendations

developed for BCI. Further, BCI says the survey questions and the Consultant’s

analysis of the responses is expert advice developed for it by the Consultant.

[71] In support of its position under s. 13(1), BCI provided affidavit evidence

from its Executive Vice President, Human Resources (EVP); its Director,

Business Partnership; and the Consultant’s Managing Director in Vancouver.

These individuals provided evidence about BCI’s engagement of the Consultant,

the survey model, the development of the survey and the services the Consultant

provided to BCI.

[72] In response, the applicant generally contests BCI’s application of s. 13(1).

He says BCI’s arguments are speculative. However, the applicant did not make

submissions specifically about whether the disputed information would reveal

advice or recommendations. The applicant’s s. 13 submissions focus on s. 13(2),

which I address below.

Analysis and conclusions

[73] I make the following findings based on the EVP’s and the Consultant’s

Managing Director’s sworn evidence, which is uncontroverted.⁷⁰The Consultant

has expertise in the area of employee engagement and the specific drivers of

engagement. The Consultant developed the survey in consultation with BCI,

⁶⁹BCI’s initial submissions at paras. 79-105.

⁷⁰Affidavit #1 of the EVP at paras. 23-28; Affidavit #1 of the Managing Director at paras. 6-20.

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based on BCI’s needs and goals. The Consultant aggregated the survey

responses, presented the results to BCI, and provided advice to BCI, based on

the results, about how to improve employee engagement.

[74] Given this context, I am satisfied that the Consultant’s views and the

written comments would reveal advice developed for BCI. The Consultant’s

views are advice to BCI about how to interpret the survey results and which

areas to focus on to improve employee engagement. The written comments

qualify as advice from BCI employees to BCI regarding various aspects of their

employment, which BCI considered in deciding how to implement the Strategy

and improve employee engagement.

[75] I am also satisfied that the survey results would reveal advice developed

for BCI. Like the written comments, I accept that this information expresses the

opinions of BCI employees regarding various aspects of their employment, and is

advice they developed for BCI regarding its decisions about how to improve

employee engagement and implement the Strategy. The survey results were also

compiled by the Consultant and form the very basis for, and are thus integral to,

its advice to BCI. As such, I accept that the survey results would also reveal the

Consultant’s advice.

[76] In addition, I accept that the survey questions and the benchmark

information would reveal advice developed for BCI. This is because the

questions and benchmark information are, in the specific records in dispute in

this case, inextricably linked to the survey results. The survey results are

expressed in the records in relation to particular survey questions and specific

benchmark information. The records say, for example, that a certain percentage

of participants responded in a particular way to a particular question or that the

percentage of participants that responded in a particular way to a particular

question is above or below average compared to other employers. In this way,

the survey questions and the benchmark information are an integral, inextricably

intertwined part of the survey results, and thus are integral to the Consultant’s

analysis of those results, and if disclosed would reveal the results, which I have

found qualify as advice developed for BCI.⁷¹

[77] However, I am not persuaded that the balance of the disputed information

would reveal advice or recommendations developed by or for BCI.

[78] First, I am not persuaded that the background explanations about

concepts relating to the survey and the survey methodology would reveal advice

or recommendations developed by or for BCI. This information is general

background information that does not reveal the survey results directly or

⁷¹In a few instances, for example in the Records at pp. 267 and 288, survey questions appear

detached from survey results; however, I am satisfied that these would still reveal the survey

questions tied to results and thus reveal advice developed for BCI.

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indirectly. It does not reveal the opinions of BCI or the Consultant regarding the

survey results or implementation of the Strategy. This information is too general

and detached from the specific survey results to be reasonably capable of

permitting inferences to be drawn that would reveal the Consultant’s advice or

the advice of the BCI employees.

[79] I am also not persuaded that the miscellaneous information—the

Consultant’s company name, statements regarding disclosure of the records,

document titles, subject headings, formatting and page numbers—would reveal

advice or recommendations developed by or for BCI. This information is general

and largely non-substantive information that could not reasonably lead to

disclosure of advice or recommendations, directly or by inference.

[80] To summarize, I conclude that the survey questions, the survey results,

the written comments, the benchmark information and the Consultant’s views

would reveal advice or recommendations developed for BCI, but the balance of

the disputed information would not reveal advice or recommendations developed

by or for BCI.

Do any of the exceptions in s. 13(2) apply?

[81] The second step in the s. 13 analysis is to consider whether any of the

information that I found would reveal advice or recommendations developed for

BCI falls within s. 13(2). Section 13(2) sets out various kinds of records and

information that the head of a public body must not refuse to disclose under

s. 13(1).

[82] BCI submits that s. 13(2) does not apply in this case.⁷²The applicant

submits that the disputed information fits within ss. 13(2)(a), (c), (d), (g) and (i).⁷³

I also consider s. 13(2)(b) to be relevant in this case and I will address it below.

I am satisfied that the other s. 13(2) subsections clearly do not apply given the

nature of the disputed information.

Factual material – s. 13(2)(a)

[83] Section 13(2)(a) says that a public body must not refuse to disclose “any

factual material” under s. 13(1).

[84] The applicant says the disputed information is factual material but does

not elaborate.

⁷²BCI’s initial submissions at para. 80; BCI’s reply submissions at paras. 14-15.

⁷³Applicant’s submissions at paras. 11 and 26-29.

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[85] In reply, BCI submits that the disputed information is opinion and advice,

not factual material, and even to the extent that the information could be

described as “factual”, it is integral to and inextricable from the advice.⁷⁴

[86] The term “factual material” is not defined in FIPPA. However, the courts

have interpreted it to mean “source materials” or “background facts in isolation”

that are not necessary to the advice provided.⁷⁵If factual information is compiled

and selected by an expert and is an integral component of their advice, then it is

not “factual material” under s. 13(2)(a).⁷⁶

[87] In my view, s. 13(2)(a) does not apply to the information I found would

reveal advice. The Consultant’s views are not factual material, but rather expert

views. The survey questions, the results and the written comments are all

opinion-based and not factual. Accordingly, I am satisfied that the information I

found would reveal advice is not “factual material” under s. 13(2)(a).

Public opinion poll – s. 13(2)(b)

[88] Section 13(2)(b) states that a public body must not refuse to disclose a

“public opinion poll”. I accept that, through the survey, the Consultant polled BCI

employees about their opinions concerning various aspects of their employment.

However, since the Consultant only provided the survey to BCI employees, the

opinion poll was internal and not “public”. As a result, s. 13(2)(b) does not apply.

Statistical survey – s. 13(2)(c)

[89] Section 13(2) says that a public body must not refuse to disclose a

“statistical survey” under s. 13(1).

[90] The applicant submits that the disputed information qualifies as a

“statistical survey”.⁷⁷

[91] BCI submits that the disputed information is not part of a statistical survey

because the surveys “are not statistical, in that they seek qualitative information

rather than quantitative, numerical, data.”⁷⁸

[92] FIPPA does not define “statistical survey”. However, it is clear from the

words of s. 13(2)(c) alone that not every survey will fall within this exception. The

exception only applies to a “statistical” survey. The disputed records clearly relate

⁷⁴BCI’s reply submissions at para. 14.

⁷⁵PHSA, supra note 68 at para. 94; Automotive Retailers Association, supra note 60 at para. 52.

⁷⁶PHSA, ibid.

⁷⁷Applicant’s submissions at para. 11.

⁷⁸BCI’s reply submissions at para. 15.

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to a survey, so the question is whether the BCI survey is a “statistical” survey.

[93] The leading BC OIPC decision on s. 13(2)(c) is Order F11-23.⁷⁹In that

case, then Adjudicator (now Commissioner) McEvoy adopted the following

definition of “statistical survey” set out in Alberta Order F2008-008:

… a “statistical survey” is a collection, interpretation and presentation of

numerical data relating to the study of a topic, issue, situation or program.

The data being collected may consist of the general views of the subject

being surveyed, and a poll can be an example of a statistical survey (but is

not necessarily one).⁸⁰

[94] After Order F11-23 was decided, in John Doe v. Ontario (Finance), the

Supreme Court of Canada considered the term “statistical survey” in the context

of Ontario’s Freedom of Information and Protection of Privacy Act. The Court

considered that term in the course of interpreting “advice” and

“recommendations” in s. 13(1) of the Ontario statute. Like s. 13(2)(c) of FIPPA,

s. 13(2)(b) of the Ontario Act states that a public body must not refuse to

disclose, under s. 13(1), a record that contains a “statistical survey”. Writing for

the Court, Rothstein J. characterized a “statistical survey” as an example of

“objective information.”⁸¹He adopted a distinction between “opinion” constituting

“advice” and “objective information”, such as that found in a statistical survey,

which merely informs a public body “of matters that are largely factual in

nature.”⁸²

[95] I note that the Supreme Court’s interpretation of a “statistical survey” in

John Doe aligns with various references to “statistical survey” evidence in court

cases. For example, courts have considered statistical survey evidence

regarding the fuel consumption rate of idling school buses, average reasonable

notice periods in unlawful dismissal cases, the prices paid to acquire the goodwill

of accounting practices during a specific period and police-reported impaired

driving rates in certain years.⁸³All of this information is objective and “largely

factual in nature”, not subjective opinion or other advice (or recommendations).

[96] Order F11-23 accepts that a statistical survey includes a survey that

collects, interprets and presents the “general views” of the survey participants.

⁷⁹Order F11-23, 2011 BCIPC 29. Order F18-43, 2018 BCIPC 46, at para. 55, follows Order F11-

23 and relies on it exclusively in relation to s. 13(2)(c). The parties did not cite these cases.

However, I am entitled to rely on them: supra note 42.

⁸⁰Alberta Order F2008-008, 2008 88742 (AB OIPC) at para. 20.

⁸¹John Doe, supra note 60 at para. 31.

⁸²John Doe, ibid, citing 3430901 Canada Inc. v. Canada (Minister of Industry), 2001 FCA 254 at

para. 63.

⁸³Briggs Bros. Student Transportation Ltd. v. Alberta (Attorney General), 2012 ABQB 455 at

paras. 17-18; Carleton Co-Operative Ltd. v. Bishop, 1996 4867 (NB CA) at para. 12; Lilly

v. Johannesson and McWilliams et al., 2004 BCSC 1133 at para. 75; R. v. Von Teichman, 2021

QCCQ 4601 at para. 16.

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However, to the extent that the “general views” of survey participants include

their subjective opinions, the definition in Order F11-23 conflicts with John Doe,

which clearly considers a statistical survey as involving objective, or largely

factual, information.

[97] It is acceptable to consider the interpretation of Ontario’s Act in discerning

the meaning of FIPPA.⁸⁴Further, although John Doe is not, strictly speaking,

binding in this case, I am required to give significant weight to the authoritative

views of the Supreme Court of Canada in considering the same language in a

similar freedom of information statute. Given the tension between Order F11-23

and the observations in John Doe, it is necessary to reconsider the meaning of

the term “statistical survey” in s. 13(2)(c).

[98] Applying the required interpretive principles, and with the help of John Doe

and the existing definition in Order F11-23, I conclude that a “statistical survey”

within the meaning of s. 13(2)(c) involves the collection, interpretation and

presentation of objective information, expressed numerically, relating to the study

of a topic, issue, situation or program. Future cases may well require further

discussion of the term, but this definition is sufficient for present purposes.

[99] Having assessed the records, I conclude that the disputed information

does not constitute a “statistical survey”. I accept that the disputed information

consists of the Consultant’s collection, interpretation and numerical presentation

of the internal survey results relating to aspects of BCI’s administration. However,

those results are clearly not objective information. To the contrary, the results

aggregate the subjective opinions, feelings, beliefs and perspectives of BCI

employees concerning various aspects of their employment. This kind of

information is by definition subjective and it does not fall within the meaning of a

“statistical survey” under s. 13(2)(c).

[100] I emphasize in closing that interpreting the term “statistical survey” to

involve objective information does not mean that subjective opinion collected

through a survey or poll can never be accessed. As already noted, s. 13(2)(b)

states that a public body must not refuse to disclose under s. 13(1) a “public

opinion poll”, which clearly captures subjective opinion information where the poll

is a “public” opinion poll.

[101] For the reasons provided above, I conclude that s. 13(2)(c) does not apply

to the information I found would reveal advice developed for BCI.

Appraisal – s. 13(2)(d)

⁸⁴See, for example, Green v. University of Winnipeg et al, 2020 MBCA 2 at para. 16; contrast Li

v. Rao, 2019 BCCA 265 at paras. 85-86.

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[102] Section 13(2)(d) states that a public body must not refuse to disclose an

“appraisal” under s. 13(1). In my view, the information I found would reveal

advice is clearly not an appraisal because it does not assess the value or worth

of anything. As a result, s. 13(2)(d) does not apply.

Final report or audit on public body performance or efficiency – s. 13(2)(g)

[103] Section 13(2)(g) states that a public body must not refuse to disclose,

under s. 13(1), “a final report or final audit on the performance or efficiency of a

public body or on any of its policies or its programs or activities”.

[104] The applicant says s. 13(2)(g) applies but does not elaborate.

[105] BCI submits that s. 13(2)(g) does not apply because the surveys “are not

a final report or audit, as they do not represent any inspection or review of

accounts or otherwise.”⁸⁵

[106] I accept that the records qualify as “a report”, but I am not satisfied that

they constitute a “final” report as required under s. 13(2)(g). The EVP’s evidence

establishes that the records were part of an “initial consultation process” and

include “preliminary analysis and advice” from the Consultant.⁸⁶Further, BCI’s

Director of Business Partnership deposes that there was a subsequent employee

survey conducted by BCI in 2016.⁸⁷I conclude from this that the disputed records

were preliminary, but not final, reports, so s. 13(2)(g) does not apply.

[107] I am also not satisfied that the reports are “on the performance or

efficiency” of BCI. The survey questions and results are about employee

engagement. However, these matters concern employees’ views and personal

opinions, which in my view are not sufficiently focused on the performance or the

efficiency of BCI. The reports do not focus, for example, on how well BCI is

performing in terms of its investment returns or its cost-effectiveness.

[108] For these reasons, I conclude that s. 13(2)(g) does not apply to the

information I found would reveal advice.

Feasibility or technical study – s. 13(2)(i)

[109] Section 13(2)(i) states that a public body must not refuse to disclose,

under s. 13(1), “a feasibility or technical study, including a cost estimate, relating

to a policy or project of the public body”.

⁸⁵BCI’s reply submissions at para. 15.

⁸⁶Affidavit #1 of the EVP at para. 12.

⁸⁷Affidavit #1 of BCI’s Director, Business Partnership, at para. 16.

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[110] The applicant says s. 13(2)(i) applies and BCI says it does not, but neither

party elaborates.

[111] Section 13(2)(i) clearly does not apply. The records are not about the

feasibility of a project or policy, but rather are about assessing the situation at

BCI and pursuing a new strategic direction. Further, past orders interpret a

“technical study” as an application of specialized engineering, mechanical or

scientific expertise.⁸⁸The records are about employee engagement, which is

clearly not “technical” in that sense.

Conclusions regarding s. 13(1)

[112] I found above that some of the disputed information—the Consultant’s

background explanations relating to survey concepts and methodology, as well

as miscellaneous information such as the Consultant’s name, subject headings

and page numbers—would not reveal advice or recommendations developed by

or for BCI. As a result, BCI is not authorized to withhold this information under

s. 13(1).

[113] I also found that the balance of the disputed information—the survey

questions, the survey results, the benchmark information, the written comments

and the Consultant’s views—would reveal advice or recommendations developed

for BCI. I found that none of the exceptions in s. 13(2) apply to this information.

As a result, BCI is authorized to withhold this information under s. 13(1).

SECTION 17 – HARM TO FINANCIAL OR ECONOMIC INTERESTS OF BCI

[114] BCI also withheld under s. 17(1) the survey results, the written comments,

cover pages for reports containing the written comments⁸⁹and the Consultant’s

views about the results and comments.⁹⁰

[115] Section 17(1) states:

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

information the disclosure of which could reasonably be expected to harm

the financial or economic interests of a public body or the government of

⁸⁸See, for example, Order F14-37, 2014 BCIPC 40 at paras. 62-64; Order F19-10, 2019 BCIPC

12 at paras. 12-26.

⁸⁹Records at pp. 208, 213, 215, 217, 220, 223, 226, 228, 232, 235 and 238.

⁹⁰The parts of the Records BCI marked at pp. 4, 10, 12-13, 15, 18, 19-40, 43-86, 88, 90, 94-98,

100-139, 141-150, 152-160, 162-172, 191, 193, 195, 198-199, 202-203, 205, 207-241, 246-249,

257-264, 268-270, 272-278, 280-281, 283-287, 292-294, 296, 303, 305-308, 310-332, 335-346,

349-360, 365-371, 373, 378-384, 386, 391-397, 399, 404-410, 412, 417-423, 425, 430-436, 438,

443-449, 451, 456-462, 464, 469-475, 477, 482-488, 490, 495-501, 503, 506-508, 510-517, 520-

522, 524-531, 534-536, 538-545, 548-550, 552-559, 561-583, 586-588, 590-597, 600-602, 604-

611, 614-625, 628-630, 632-639, 644-646, 649-651 and 653-660.

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British Columbia or the ability of that government to manage the economy,

including the following information:

(a) trade secrets of a public body or the government of British

Columbia;

(b) financial, commercial, scientific or technical information that

belongs to a public body or to the government of British Columbia

and that has, or is reasonably likely to have, monetary value;

(c) plans that relate to the management of personnel of or the

administration of a public body and that have not yet been

implemented or made public;

(d) information the disclosure of which could reasonably be expected

to result in the premature disclosure of a proposal or project or in

undue financial loss or gain to a third party;

(e) information about negotiations carried on by or for a public body or

the government of British Columbia;

(f) information the disclosure of which could reasonably be expected

to harm the negotiating position of a public body or the government

of British Columbia.

[116] Past orders establish that ss. 17(1)(a) through (f) are examples of the

types of information the disclosure of which may result in harm, and that they are

not standalone provisions.⁹¹Ultimately, the question under s. 17(1) is whether

disclosure of the disputed information could reasonably be expected to harm the

public body’s financial or economic interests.

[117] The standard BCI must satisfy under s. 17(1) is a “reasonable expectation

of harm”. This standard is a “middle ground between that which is probable and

that which is merely possible.”⁹²BCI is not required to prove that the alleged

harm will occur, or even that the harm is more likely than not to occur, if the

disputed information is disclosed.⁹³It need only prove that there is a “reasonable

basis for believing that harm will result” from disclosure.⁹⁴

⁹¹For the principles set out in this paragraph, see Order F19-10, 2019 BCIPC 12 at para. 28 and

the cases cited there.

⁹²Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3 at para. 201.

⁹³British Columbia Hydro and Power Authority v. British Columbia (Information and Privacy

Commissioner), 2019 BCSC 2128 at para. 93.

⁹⁴United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of

the United States and Canada, Local 170 v. British Columbia (Information and Privacy

Commissioner), 2018 BCSC 1080 at para. 42.

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[118] Further, the release of the disputed information itself must give rise to a

reasonable expectation of harm.⁹⁵There must be a “clear and direct connection”

between the disclosure of the information and the alleged harm.⁹⁶

[119] I already found above that BCI is authorized under s. 13(1) to refuse

access to the survey results, the written comments and the Consultant’s views,

so it is not necessary to determine here whether BCI is also authorized to

withhold the same information under s. 17(1).

[120] The only information in dispute under s. 17(1) that I have not already

found that BCI can withhold is the cover pages for reports containing the written

comments. I note that BCI’s severing of these cover pages appears to be

inconsistent with its severing elsewhere in the records, where it did not apply

s. 17(1) to other similar cover pages.⁹⁷

[121] BCI provided extensive affidavit evidence and argument⁹⁸in support of its

position under s. 17(1), but that material is not focused on the cover pages. In

summary, BCI argues that disclosing the survey results, written comments, and

the Consultant’s views could reasonably be expected to break a promise BCI

made to its employees that their participation in the survey would be confidential,

causing a loss of trust and, in turn, financial harm to BCI. BCI also argues that

disclosing the survey results, written comments, and the Consultant’s views

could reasonably be expected to harm its ability to recruit and retain employees,

which has negative financial consequences for BCI.

[122] Without more from BCI specifically relating to the cover pages, I am not

persuaded that BCI has met its burden to establish that s. 17(1) applies to that

information. The cover pages contain dates and subject titles. This information is

minimal and non-substantive. The cover pages do not contain any information

that is or would reveal the survey results, the written comments or the

Consultant’s views, so I am not persuaded that any of this information could

reasonably be expected to cause the harms BCI alleges. I conclude that BCI is

not authorized to withhold the cover pages under s. 17(1).

SECTION 21 – HARM TO THIRD-PARTY BUSINESS INTERESTS

[123] BCI also withheld a significant amount of the disputed information under

s. 21(1).⁹⁹The parts of s. 21 that are relevant in this case state that:

⁹⁵British Columbia (Minister of Citizens’ Services) v. British Columbia (Information and Privacy

Commissioner), 2012 BCSC 875 at para. 43.

⁹⁶Order 02-50, 2002 42486 (BC IPC) at paras. 112 and 137, citing Lavigne v. Canada

(Office of the Commissioner of Official Languages), 2002 SCC 53 at para. 58.

⁹⁷For example, Records at pp. 271, 282, 290, 304 and 333.

⁹⁸BCI’s initial submissions at paras. 106-138; BCI’s reply submissions at paras. 16-21.

⁹⁹The records and information marked by BCI on all of the pages of the Records except for blank

pages (e.g., p.161) and pp. 242-245, 250-252, 256, 260-261, 264-265, 271-279, 282, 290, 304,

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

information

(a) that would reveal

(i) trade secrets of a third party, or

(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 ….¹⁰⁰

[124] Section 21(1) creates a three-part test. BCI must establish all three parts:

first, that the disputed information is one or more of the kinds of information

described in s. 21(1)(a); second, that the information was supplied, implicitly or

explicitly, in confidence, as required by s. 21(1)(b); and third, that disclosure of

the information could reasonably be expected to result in one or more of the

harms described in s. 21(1)(c).

[125] While BCI is not withholding all of the information under each category of

information, it is withholding at least some information from each category.

However, I already found above that BCI is authorized under s. 13(1) to withhold

the disputed information in all categories except for:

 the Consultant’s background explanations about concepts relating to the

survey and aspects of the survey methodology, including survey

objectives, the level of participation, how to interpret certain charts, why

the Consultant measures certain things, and how certain scores are

calculated; and

 miscellaneous, largely non-substantive, information such as the

Consultant’s company name, statements regarding disclosure of the

records, document cover pages, subject headings, formatting and page

numbers.

333, 347, 361-362, 371, 374-375, 378, 384, 387-388, 400-401, 410, 413-414, 423, 426-427, 430,

436, 439-440, 446, 449, 452-453, 456, 459, 462, 465-466, 469, 472, 475, 478-479, 482, 485,

488, 491-492, 495, 498, 501, 504-505, 518, 532, 546, 584, 598, 612, 626, 640, 643 and 646-647.

¹⁰⁰Neither party raised s. 21(2) or s. 21(3), and it is clear that neither section applies in this case.

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[126] I will only consider whether s. 21(1) applies to the information BCI is

withholding under these two categories of information because BCI is already

authorized to withhold the balance of the disputed information under s. 13(1).

[127] It is not at all clear to me that the background information and the

miscellaneous information satisfies ss. 21(1)(a) and 21(1)(b). However, in this

case, I do not consider it necessary to consider those issues.¹⁰¹Even assuming

without deciding that the information in dispute satisfies ss. 21(1)(a) and (b), I am

not persuaded, for the reasons provided below, that disclosure of the background

information and the miscellaneous information could reasonably be expected to

result in any of the harms described in s. 21(1)(c).

[128] The standard that BCI must satisfy under s. 21(1)(c) is the same one that

applied under s. 17(1), a “reasonable expectation of harm”.

[129] BCI does not explicitly state which subsections of s. 21(1)(c) it is relying

on, but the substance of its submissions fit under ss. 21(1)(c)(i) and (iii). BCI

submits that disclosure of the disputed information could reasonably be expected

to significantly harm the Consultant’s competitive or negotiating position under

s. 21(1)(c)(i), or result in undue financial loss to the Consultant or undue financial

gain to its competitors under s. 21(1)(c)(iii).¹⁰²

[130] The details of BCI’s harm arguments are set out in the evidence of the

Consultant’s Managing Director. Although the Consultant chose not to make its

own submissions in this inquiry, its Managing Director provided evidence in

support of BCI’s position under s. 21(1). The Consultant’s Managing Director

deposes that:

The disclosure of the Survey questions and benchmarks would be harmful

to [the Consultant]. The questions and benchmarks have been developed

over many years, through a great deal of investment, study and refinement

by [the Consultant]. This is proprietary information that gives [the

Consultant] a competitive advantage in the marketplace. Clients choose to

work with [the Consultant] for myriad reasons, including our historical and

wide-ranging benchmarking database. [The Consultant’s] questions are

also specifically tailored and fine-tuned based on years of experience and

cannot be replicated by any other company. If these questions were made

public, that competitive advantage would be completely diminished

resulting in an undue loss to [the Consultant]. [The Consultant] would be

deprived of its unique ability to provide clients with its particular set of

¹⁰¹I also note that the applicant appears to concede that the disputed information meets s.

21(1)(a): applicant’s submissions at paras. 22 and 36-41. Further, BCI claims that the disputed

information is “trade secrets”: BCI’s initial submissions at paras. 140 and 142-145. The definition

of a “trade secret” in Schedule 1 of FIPPA requires that disclosure of the disputed information

result in “harm or improper benefit”, which overlaps with the harm analysis s. 21(1)(c). Given the

overlap, it makes sense in this case to simply analyze s. 21(1)(c).

¹⁰²BCI’s initial submissions at paras. 148-154.

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designed questions, benchmarks and analysis. Further, a competitor would

be positioned far ahead having not had to invest resources and time into

the development of survey questions and benchmarks, akin to a “windfall”

in strategic market position.

Additionally, the disclosure of results outside of BCI would be harmful to

[the Consultant’s] reputation in the marketplace as a top employee

engagement and consultancy firm. A commitment is made to all survey

participants that survey results will be kept strictly confidential. [The

Consultant] commits to providing aggregate results only to BCI, and to not

disclose any responses outside such organization. A breach of these

confidentiality obligations would result in [the Consultant’s] reputational

standing being harmed, potentially irreversibly.

Questions being made public would again result in a loss to [the

Consultant’s] competitive advantage; [the Consultant] would no longer be

able to offer a wholly unique product in the form of our survey and, further,

a large portion of [the Consultant’s] contracting power and negotiating

leverage would be diminished due to our survey, data, format, and

presentation being made public. For the foregoing reasons, we object to

the requested disclosure in whole, and in any event, we request survey

questions and benchmarks be fully redacted from any disclosures

connected to this pending request.¹⁰³

[131] This evidence focuses on the survey questions and the benchmark

information, which I already found can be withheld. However, specifically with

respect to the background explanations and miscellaneous information, the

Consultant says its contracting power and negotiating leverage would be

diminished due to its survey, data, format, and presentation being made public.

BCI argues that disclosure of the information in dispute could reasonably be

expected to cause the Consultant to lose the value of its “unique and proprietary

methods used to present the results in coherent, synthesized mediums.”¹⁰⁴

[132] In response, the applicant submits that disclosure of the disputed

information could not reasonably be expected to result in any of the harms

described in s. 21(1)(c). The applicant says BCI’s evidence is speculative and

insufficient to establish harm under s. 21(1)(c).¹⁰⁵

[133] Turning to my analysis, I first accept the well-established principle that

disclosure of information under FIPPA is, in effect, disclosure to the world, which

includes, in this case, the Consultant’s competitors.¹⁰⁶

¹⁰³Affidavit #1 of the Consultant’s Managing Director at paras. 33-35.

¹⁰⁴BCI’s initial submissions at para. 150.

¹⁰⁵Applicant’s submissions at para. 22.

¹⁰⁶See, for example, Order 03-35, 2003 49214 (BC IPC) at para. 31.

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[134] I am not persuaded that disclosure of the miscellaneous information

showing the format of the reports and the manner in which the Consultant

presented the survey results and its analysis of the results could reasonably be

expected to result in harm under s. 21(1)(c). I consider it reasonable to assume

that the Consultant’s competitors already have their own formatting and

presentation. Neither BCI nor the Consultant’s Managing Director adequately

explain how BCI’s style of presentation is something its competitors could benefit

from copying, resulting in undue financial gain for a competitor or a significant

competitive harm to the Consultant. I do not see how disclosure of non-

substantive aspects of a report such as presentation or formatting carry sufficient

competitive value to result in the harms described in s. 21(1)(c).

[135] I am also not persuaded that disclosure of the Consultant’s company

name and statements regarding disclosure of the records could reasonably be

expected to result in harm under s. 21(1)(c). BCI does not adequately explain

how, and I am not persuaded that, this kind of generic information could

reasonably be expected to provide the Consultant’s competitors with an undue

financial gain or significant competitive advantage.

[136] Further, I am not persuaded that disclosure of the Consultant’s

background explanations about the survey could reasonably be expected to

result in harm under s. 21(1)(c). I recognize that this information sets out various

aspects of the Consultant’s survey methodology, such as the concepts it uses

and how it calculates certain employee engagement scores. The Consultant’s

Managing Director asserts that this information is proprietary but does not in my

view provide adequate supporting explanation to establish that the information is

unique to the Consultant in a way that makes it a “trade secret” as defined in

Schedule 1 of FIPPA, or otherwise proprietary to the Consultant, or in a way that

provides a competitive advantage.

[137] Having reviewed the background explanations themselves, which are

evidence for s. 21(1) purposes, much of it is quite general and predictable in

nature, rather than information that only the Consultant knows and employs to its

competitive advantage. For example, the information in dispute sets out and

explains the employee engagement topic areas that the Consultant addresses in

its survey questions, but most of those areas are so obviously related to

employee engagement that I find it difficult to accept that the Consultant’s

competitors do not also address such areas in their surveys.

[138] Finally, in my view, with respect to both categories of information in

dispute, even if it is proprietary, BCI’s arguments and the Consultant’s evidence

do not establish the requisite connection between disclosure and harm under

s. 21(1)(c). The Consultant’s Managing Director says disclosure of the

information could reasonably be expected to cause the Consultant to lose

“contracting power and negotiating leverage”. However, the evidence before me

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does not adequately explain what contracts are available to the Consultant and

its competitors, what negotiations are involved, who the Consultant’s competitors

are, how many there are, what the competitive market is like, or, most

importantly, how exactly the specific information in dispute could reasonably be

expected to provide a competitor with a competitive edge in “contracting” and

“negotiating”.

[139] For the above reasons, I conclude that BCI is not required under s. 21(1)

to refuse to disclose the miscellaneous information in the records (such as the

Consultant’s company name, cover pages, headings and page numbers) or the

background explanations about concepts relating to the survey and aspects of

the survey methodology.

SECTION 22 – THIRD-PARTY PERSONAL PRIVACY

[140] Finally, BCI withheld parts of the written comments under s. 22(1).¹⁰⁷

Section 22(1) states that a public body must refuse to disclose personal

information to an applicant if the disclosure would be an unreasonable invasion

of a third party's personal privacy.

[141] I already found above that BCI is authorized to withhold the written

comments in their entirety under s. 13(1). Given this finding, it is not necessary to

also consider whether BCI is required to withhold parts of the written comments

under s. 22(1).

CONCLUSION

[142] For the reasons given above, under s. 58 of FIPPA, I make the following

orders:

1. Subject to subparagraph 2 below, under s. 58(2)(b), I confirm BCI’s

decision that it is authorized to withhold some of the disputed information

under s. 13(1), which is the information I have not highlighted in a copy

of the records that the OIPC will provide to BCI with this order.

2. Under s. 58(2)(a), I require BCI to give the applicant access to all of the

disputed information that I have highlighted in a copy of the records that

the OIPC will provide to BCI with this order, which is the information that

I found BCI is not authorized or required to withhold under ss. 13(1),

17(1) or 21(1).

Pursuant to s. 59 of FIPPA, I require BCI to give the applicant access to the

disputed records and information in accordance with the orders above by

¹⁰⁷Records at pp. 88, 126-127, 134, 137, 139, 141-142, 144, 147, 149-150, 152-156, 158-159,

162-163, 209-212, 216, 219, 234 and 237.

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September 29, 2022. Under s. 58(4) of FIPPA, and subject to s. 59, I require BCI

to concurrently copy the OIPC registrar of inquiries on its cover letter or email to

the applicant, together with a copy of the records, so that the OIPC can verify

compliance with the orders above.

August 17, 2022

ORIGINAL SIGNED BY

Ian C. Davis, Adjudicator

OIPC File No.: F16-65744