Executive Summary: Key Legal and Evidentiary Issues

• The City of Vancouver sought judicial review of an adjudicator's order requiring it to disclose street addresses of properties used as case studies in financial modeling prepared by its contractor, Coriolis Consulting Corp.
   
• Central to the dispute was whether ss. 17(1) and 21(1) of the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165 (FIPPA) permitted the City to withhold the Case Study Addresses from disclosure.
   
• Under s. 17(1), the court found the adjudicator reasonably rejected the City's arguments relating to altered real estate market behavior and increased staffing costs, but unreasonably concluded the City did not need the Case Study Addresses to fully scrutinize and rely on Coriolis' financial modeling work.
   
• Regarding s. 21(1), the adjudicator's finding that the financial modeling data was not information "of or about" a third party was held to be unreasonable, as the pro formas reveal financial information about the specific properties and their owners.
   
• Both aspects of the adjudicator's decision were set aside on reasonableness review, applying the standard established in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.
   
• No order as to costs was made, as costs were not sought by any party.

Facts of the case

In December 2021, as part of the City's Secured Rental Policy, Vancouver City Council approved amendments to the zoning bylaw to streamline future rezoning applications in surrounding low-density areas, with the objective of accelerating the delivery of rental housing in local shopping areas and nearby low-density areas. To implement these changes, the City retained Coriolis Consulting Corp., its primary financial modeling consultant of over 25 years, to perform financial modeling of various purpose-built rental housing development scenarios. Coriolis prepared three memoranda and a series of draft exhibits — marked "DRAFT for discussion purposes only" — containing financial analysis of hypothetical development scenarios, including estimated profit margins and supportable land values for various case study properties. The memos were publicly disclosed on the City's website, but the exhibits were not. Coriolis conducted this modeling using actual residential and low-density commercial properties as case studies, selected as typical examples of sites with development potential within each area; the owners of those properties were not informed that their property was being used as a case study.

On July 5, 2021, a requesting party identified as "John Doe" submitted a request for the information contained in the exhibits. On August 27, 2021, the City provided several records in response but withheld others, initially relying on ss. 13(1) and 17(1) of FIPPA. After a review process and mediation under s. 55 of FIPPA, the City withdrew its reliance on s. 13(1), briefly considered and then also withdrew reliance on s. 22(1), and ultimately agreed to disclose all remaining records — except for the street addresses of the case study properties ("Case Study Addresses"), which were redacted. The City's concern was that if the Case Study Addresses were disclosed, anyone could link the financial analysis data in the pro formas to a specific property, thereby revealing financial information about that property's development potential and potentially affecting its land value. The matter then proceeded to an inquiry under s. 56 of FIPPA before an adjudicator appointed by the Information and Privacy Commissioner, who was also given leave to add s. 21(1) as a ground for withholding the addresses. In an order issued June 14, 2024, the adjudicator ordered the City to disclose the Case Study Addresses. The City then sought judicial review of that decision before the BC Supreme Court.

Policy, legislative, and contractual provisions at issue

The City relied on two provisions of FIPPA. Section 17(1) permits — but does not require — the head of a public body to refuse to disclose information where disclosure could reasonably be expected to harm the financial or economic interests of the public body or the government of British Columbia, or the ability of that government to manage the economy, and includes examples such as financial, commercial, scientific or technical information that belongs to a public body and has monetary value (s. 17(1)(b)), and information whose disclosure could result in undue financial loss or gain to a third party (s. 17(1)(d)). Section 21(1) is a mandatory withholding provision, requiring the head of a public body to refuse to disclose commercial, financial, labour relations, scientific or technical information that is "of or about" a third party, supplied implicitly or explicitly in confidence, and whose disclosure could reasonably be expected to result in similar information no longer being supplied to the public body when it is in the public interest that such information continue to be supplied (s. 21(1)(a)(ii) and (c)(ii)).

Reasoning and analysis

The agreed standard of review was reasonableness, as established in Vavilov — the adjudicator's decision could only be set aside if found to be unreasonable. On s. 17(1), the court addressed three streams of the City's arguments. First, as to the City's contention that the "ability of that government to manage the economy" language in s. 17(1) extended to the City of Vancouver as a local government, the court upheld the adjudicator's interpretation that the word "that" is a demonstrative pronoun referring only to the government of British Columbia, not to other public bodies that might also be governments. Second, as to alleged financial harm from altered real estate market behavior, the court agreed with the adjudicator that the City's evidence — including the evidence of Blair Erb, owner of Coriolis, and Edna Cho, Senior Housing Planner — was too vague, speculative, and lacking in detail to establish a reasonable expectation of probable financial or economic harm. Third, as to the City's argument that losing access to the Case Study Addresses would cause financial harm by preventing effective scrutiny of Coriolis' modeling, the court departed from the adjudicator. Justice Kirchner found it constituted a clear logical fallacy for the adjudicator to accept, on the one hand, that Coriolis would withhold the addresses in future modeling work if disclosure was required, and then conclude, on the other hand, that the City did not need those addresses to fully rely on the modeling. The court found it unreasonable to expect the City to forgo the ability to scrutinize and fully understand the work it retains and pays Coriolis to perform. On s. 21(1), the adjudicator had found the Case Study Addresses, combined with the pro forma financial data, were not information "of or about" the owners of the case study properties because the financial analysis was premised on a hypothetical developer — not the current owners — purchasing and developing the property. The court rejected this reasoning as a logical fallacy: the information still pertains to each specific property and thus reveals financial information about that property's development potential and value, making it information about the current owner. The court also found the adjudicator's conclusion that the information was not "of" Coriolis to be reasonable, as Coriolis did not own the information — the City did, having paid for it — and the information was not compiled for Coriolis' own commercial purposes.

Ruling and overall outcome

Justice Kirchner set aside the adjudicator's decision in two respects and remitted the matter to the Office of the Information and Privacy Commissioner for reconsideration. Under s. 17(1), the remitted question is whether there is a reasonable expectation of probable financial or economic harm to the City arising from its inability to fully scrutinize and understand Coriolis' financial modeling without the Case Study Addresses. Under s. 21(1), the Commissioner must reconsider the remaining elements of the analysis — including whether the information was supplied in confidence and whether disclosure would result in Coriolis ceasing to supply similar information in circumstances where the public interest favors continued supply — in light of the court's finding that the Case Study Addresses, combined with the pro forma data, constitute financial information about the owners of the case study properties. The City of Vancouver was the successful petitioner on judicial review. No order as to costs was made, as costs were not sought by any party.