Executive Summary: Key Legal and Evidentiary Issues

• Leave to bring the motion after the action was set down for trial under Rule 48.04, given TPA’s late pursuit of additional production.

• Relevance and necessity of non-party production under Rule 30.10, where the sought pricing documents were tied only to a speculative damages theory.

• Tension between documentary discovery obligations (Rules 30.02 and 30.07) and third-party commercial confidentiality protections under MFIPPA s. 10(1).

• Risk of competitive harm to a non-party competitor (GGI) if its specific pricing and rate structure were disclosed to a direct rival.

• Prejudice and delay concerns arising from attempting to expand the evidentiary record on the eve of trial, including likely cascading expert-report updates and adjournment.

• Evidentiary insufficiency where there was no proof of actual price increases or linkage between GGI’s confidential invoices and any material, disputed issues of liability or damages.

Facts and procedural background

TPA North America Inc. is a supplier of travel time systems used in traffic and parking automation. The City of Burlington is an Ontario municipality that, in February 2020, issued a request for proposals (RFP) for a Travel Time System to be used in its transportation network. Two key private actors participated in that competition: TPA, the plaintiff, and The Get Go Inc. (GGI), a competing provider of travel time solutions.

Both TPA and GGI submitted bids in response to the RFP. Burlington ultimately entered into a contract with GGI, not TPA. The City’s position was that this RFP was not a formal tender call, but rather a more flexible proposal process in which the City did not create contractual relations with bidders and reserved the right to accept a proposal other than the highest-scoring one. Burlington maintained that it considered TPA’s proposal fairly and in good faith and that there was no hidden preference for GGI.
TPA sued Burlington in 2021, alleging it lost profits by not being awarded the contract. Its theory was that Burlington had engaged in unfair public procurement practices: either the successful bidder was effectively predetermined or the process was structured in a way that made it impossible for TPA and others to succeed. Burlington defended on the basis that no bidding contract arose with TPA, that it had assessed the proposals appropriately, and that the City’s reservation-of-rights language and scoring framework permitted its ultimate choice of GGI.

The litigation proceeded through standard steps: the Statement of Claim and Defence were exchanged, discoveries were completed, the matter was set down for trial, and expert reports were served. A pretrial conference took place in July 2025, and an exit pretrial followed in October 2025. By the time of the motion addressed in this endorsement, the matter was scheduled for trial during the October sittings and had effectively reached the doorstep of trial.

Disputed documents and MFIPPA context

During disclosure, Burlington produced a purchase order (Purchase Order No. 62005752) relating to the GGI contract, but in redacted form. The City did not produce GGI’s invoices at that time. Later, on April 29, 2025, Burlington served an expert report that referred to certain GGI invoices; those invoices were themselves redacted in the City’s records. The expert even noted that the redactions constrained the precision of their opinion.

TPA then requested full, unredacted copies of GGI’s invoices. In July 2025, Burlington produced only redacted versions of nine invoices, again citing confidentiality and privacy limitations. The City relied on the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) and, specifically, the protection of third-party commercial and financial information under section 10(1), to justify refusing to reveal GGI’s detailed pricing and rate structure.
TPA argued that any privacy or confidentiality concerns could be managed by a protective order, but did not file concrete evidence or a detailed proposal to show why such an order was feasible or necessary in this case. The court declined to adopt that suggestion in the absence of a proper evidentiary foundation.

The MFIPPA issue turned on the nature of the information in the purchase order and invoices. Section 10(1) protects from disclosure certain trade, commercial, financial, and technical information “supplied in confidence” to a municipal institution, where disclosure could reasonably be expected to cause competitive harm or undue loss/gain, or otherwise damage the flow of such information. TPA relied on earlier authority from the Information and Privacy Commissioner (IPC) in Peel (Regional Municipality) (Re), arguing that contract terms mutually negotiated with a municipality are not “supplied” within the meaning of MFIPPA and therefore not subject to section 10(1). The court noted there was no evidence here establishing that the disputed pricing terms were mutually negotiated rather than supplied, and, in any event, the IPC in Peel had emphasized that detailed unit prices and rate structures can still be confidential, sensitive, and competitively significant. The decision stressed that revealing specific hourly rates or percentage calculations can expose a bidder’s pricing strategy in a highly competitive field and remain commercially meaningful even several years later.

On that reasoning, the court accepted that GGI’s specific pricing and invoicing details were the type of commercial and financial information that, if disclosed to a direct competitor like TPA, could cause real competitive harm in future municipal procurements. That risk of harm became a central consideration when the court balanced relevance, necessity, and fairness in deciding whether to compel disclosure.

The motion: relief sought and leave to proceed

TPA brought a motion seeking two main forms of relief. First, it asked the court to compel GGI, a non-party to the action, to produce unredacted versions of Purchase Order 62005752 and nine identified invoices (together, the “Unredacted Documents”), relying on Rule 30.10 of the Rules of Civil Procedure. In the alternative, it sought an order compelling Burlington, as a party, to produce those same Unredacted Documents in unredacted form, relying on the party-document rules in Rules 30.02 and 30.07.
Burlington took no position on the motion, signalling that it would abide by whatever the court ordered with respect to production. GGI, on the other hand, actively opposed the motion, insisting that its invoices contained proprietary and confidential financial information that should not be turned over to a rival. GGI also verbally requested that a trial summons issued against it by TPA be quashed, but because GGI did not bring a proper cross-motion, the associate justice declined to deal with that request and left any summons issues to the trial judge.

Procedurally, there was a threshold issue under Rule 48.04: once a trial record is filed and an action is set down for trial, a party generally needs leave of the court to bring further motions. At the pretrial conference in July 2025, the pretrial judge had allowed TPA to bring a motion on document production, with a hearing date set in August. However, TPA did not file the necessary material in time, GGI did not attend, and the motion date was vacated. TPA resurrected the production issue at the exit pretrial in October 2025, after which the associate justice fixed a new hearing date.

GGI argued that TPA should not receive leave because it could and should have sought pricing and invoice information much earlier in the litigation. From GGI’s perspective, it was obvious that the successful bidder on a multi-year contract would generate invoices, and TPA could not sit back through discovery and then suddenly claim, on the eve of trial, that these documents were crucial. TPA countered that Burlington’s late service of an expert report in April 2025, which made express reference to the redacted invoices and suggested the redactions limited the expert’s analysis, constituted a material change in circumstances after the action had been set down.

The court acknowledged that TPA should have understood from the outset that invoices would exist and could potentially bear on pricing and damages. Nonetheless, Burlington’s late expert report and the heavy redactions did raise new practical concerns so close to trial. Weighing the non-exhaustive leave factors articulated in earlier cases, including what the party knew when the trial record was filed, the change in circumstances, prejudice, and the potential merits of the motion itself, the court ultimately granted leave to bring the motion. GGI would not be prejudiced simply by the timing of the hearing, since it was not a party at trial, and the pretrial judge had already signalled that the production issue could be advanced.

Non-party production under Rule 30.10

Having allowed the motion to proceed, the court turned first to whether GGI, as a non-party, should be compelled to produce the Unredacted Documents under Rule 30.10. That rule allows for an order against a non-party only where two conditions are met: the requested documents must be relevant to a material issue in the action, and it must be unfair to require the moving party to go to trial without them. Both elements were disputed.

TPA’s theory on relevance was centred on damages, particularly its claim for lost profits. The RFP had stated that price increases during the contract “may” be considered and tied to the Consumer Price Index (CPI). TPA asserted that, during the COVID period, there had been a period of “massive price inflation,” and speculated that GGI might have obtained price increases in excess of CPI. If that were true, TPA argued, an expert would need that data to accurately quantify TPA’s own hypothetical profits: had TPA won the contract, it could have secured similar or greater price adjustments, and its damages model might be more favourable.

The court found this damages theory to be speculative. TPA’s own expert had not provided concrete evidence setting out why the methodology could not be implemented or critiqued without the Unredacted Documents. More fundamentally, there was no evidence on the record that GGI had, in fact, received any price increases over the contract term, let alone increases exceeding CPI. TPA acknowledged in submissions that the Unredacted Documents might just as easily show that any price increases were aligned with CPI, rendering its exercise pointless from a damages perspective.

Drawing on precedent, including the Ontario Court of Appeal’s decision in Actava TV, Inc. v. Matvil Corp., the court emphasized that seeking a competitor’s confidential financial records merely to refine a preferred damages methodology, without any evidence that those records actually bear on liability or the existence of loss, is insufficient. Evidence “anchored in speculation” cannot sustain a finding of relevance to a material issue. The distinction between “want” and “need” was highlighted: it might be useful for TPA’s expert to have access to GGI’s data, but the case did not turn on those invoices.

Even if marginally relevant to one possible measure of loss, the invoices did not go to the core issues in the action: whether Burlington’s evaluation process was unfair or tainted and whether TPA suffered damages at all. They were, at best, linked to one way of quantifying quantum if liability were established.

On the second requirement—unfairness in proceeding to trial without the documents—the court noted that non-party production is the exception, not the rule. Rule 30.10 assumes that a party can often be compelled to trial without forcing a third party to surrender its records. The more central the relevance, the more compelling the unfairness argument; here, given the tenuous relevance, the perceived unfairness was correspondingly weak.

The court reviewed the recognized fairness factors, including the stage of proceedings, the availability of other means to obtain evidence, the burden on the non-party, the status of discoveries, and the bona fides of the action. The motion was heard with trial imminent, discoveries were long complete, and ordering production would almost certainly cascade into new expert work and potential adjournment of a five-year-old case. GGI had persuasively raised the competitive sensitivity of its pricing. Moreover, TPA could still attempt to seek documents or answers at trial through a summonsed GGI witness, a route that had not yet been fully exhausted.

In light of the speculative relevance, the late timing, and the genuine risk of harm to a non-party competitor, the court declined to order production from GGI under Rule 30.10.

Party production by Burlington and interaction with MFIPPA

The court then addressed TPA’s alternative request: an order requiring Burlington, as a party, to produce the Unredacted Documents under Rules 30.02 and 30.07. Those rules codify the obligation of parties to list and produce all non-privileged documents relevant to any matter in issue, and to supplement their affidavits of documents if they later obtain further relevant documents or discover prior omissions.

TPA argued that Burlington’s obligations under the Rules of Civil Procedure are independent of MFIPPA. A litigant may be required to disclose documents under court rules even if those same records are protected from disclosure under access-to-information statutes, and there is case law confirming that a municipality is not required to exhaust MFIPPA processes before the court can order disclosure in litigation. Burlington, for its part, had effectively used MFIPPA as the basis for the redactions and non-production of detailed pricing.

The court agreed, as a matter of principle, that MFIPPA does not strip the court of its authority to order production of relevant documents in litigation. However, MFIPPA’s policies and the IPC’s jurisprudence remained highly relevant when deciding whether there were “good reasons” to limit disclosure, particularly where those reasons went to third-party confidentiality and competitive harm.

Returning to the IPC decision in Peel, the court noted that even where contract documents are nominally the product of mutual agreement, detailed unit prices, hourly rates, and similar granular financial terms can still be regarded as “supplied in confidence” and protected if disclosure could reasonably be expected to prejudice a third party’s competitive position. In this case, there was no evidence to support TPA’s contention that the disputed information had been jointly negotiated as opposed to effectively supplied by GGI in its bid and follow-on dealings.

More importantly, the court found that GGI’s pricing data was precisely the type of confidential commercial information MFIPPA and related case law seek to shield. There was no indication that GGI’s or TPA’s pricing had been made public, nor that the competitors had ever had access to each other’s financial terms. Ordering disclosure in a lawsuit between a disappointed bidder and a municipality, in a way that gave one competitor a detailed map of the other’s rate structure, would expose GGI to real competitive disadvantage in future RFPs and public contracts.

The court acknowledged that, as a general rule, a party resisting production has to show both that the information is not relevant and that there is a good reason not to disclose it. Even assuming for argument’s sake that the invoices were relevant (which the court did not find on the record), there remained compelling grounds to withhold them: the risk of significant harm to GGI’s competitive position and the broader public interest in preserving the integrity of competitive procurement processes by protecting confidential pricing.

Earlier authority had held that a relevant document should generally be produced in full, except to the extent that disclosure would cause significant harm to the producing party or infringe public interests deserving of protection. In this case, the court concluded that exposing GGI’s specific rates and pricing strategy would cross that threshold. On that basis, and consistent with its conclusion on Rule 30.10, the court refused to order Burlington to produce the Unredacted Documents under Rules 30.02 and 30.07.

Outcome and costs

In the result, the associate justice dismissed TPA’s motion in its entirety. Leave to bring the motion had been granted, but the substantive relief—compelling GGI or Burlington to produce the Unredacted Documents—was refused. The court held that the invoices and purchase order, in unredacted form, were not sufficiently tied to material issues in the litigation, especially given their speculative link to one possible damages methodology. At the same time, there were serious concerns about exposing a non-party competitor’s confidential pricing to a direct rival, particularly in a sensitive public procurement context and at a very late stage in long-running litigation.

On costs, the usual rule that costs follow the event was applied. GGI, having successfully opposed the motion, was awarded its partial indemnity costs in the all-inclusive amount of $5,086.23, payable by TPA within 30 days. Burlington, which had taken no position, neither received nor paid costs. Thus, in this decision on the production motion, GGI emerged as the successful party, with the only monetary award being the $5,086.23 in costs ordered in its favour; no damages or other monetary relief were determined or awarded on the underlying procurement claim at this stage.