OIPC File No.

: F13-55000
Public Body File No.: BCPC-346
IN THE MATTER OF AN INQUIRY UNDER PART 5 OF THE
FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT,
R.S.BC. 1996, c. 165
BETWEEN:
BOB MACKIN
APPLICANT
AND:
BC PAVILION CORPORATION
PUBLIC BODY
AND:
THIRD PARTIES
THIRD PARTIES

SUBMISSIONS OF THE THIRD PARTIES,

VANCOUVER WHITECAPS FC LP &
BC LIONS FOOTBALL CLUB INC.

Counsel for the Third Parties,

Vancouver Whitecaps FC LP and
BC Lions Football Club Inc.
Karl E. Gustafson, Q.C.
Melanie J. Harmer
McMillan, LLP
1500 1055 West Georgia Street
P.O. Box 11117, Stn. Royal Centre
Vancouver, B.C. V6E 4N7
Tel: (604) 689-9111
Fax: (604) 685-7084
Email: karl.gustafson@mcmillan.ca

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INTRODUCTION
1.

The applicant, Bob Mackin (the Applicant), has made a request to the public

body, BC Pavilion Corporation (PavCo), to obtain data showing actual game-bygame attendance reports for Vancouver Whitecaps and B.C. Lions exhibition, regular
season, playoff and championship games between September 30, 2011 and present day,
based on the actual number of people who visited the stadium on each event date with
paid or complimentary tickets or passes.
2.

The responsive document identified by PavCo (the Scanned Attendance

Figures) represents the confidential, proprietary, commercial information of the third

parties, Vancouver Whitecaps FC LP (the Whitecaps) and BC Lions Football Club
Inc. (the BC Lions). The Whitecaps and the BC Lions therefore oppose the disclosure
of the Scanned Attendance Figures as the Scanned Attendance Figures are protected
under s. 21(1) of the Freedom of Information and Protection of Privacy Act, R.S.B.C.
1996, c. 165 (FIPPA).
JOINT SUBMISSION
3.

While the following submission is made on behalf of both the Whitecaps and the

BC Lions, the respective third parties are not privy to the responsive records as they
relate to the other third party.
FACTS
4.

The Whitecaps is a privately-owned professional soccer club that, among other

things, operates a team in Major League Soccer (the MLS), the top professional soccer

LEGAL_24026563.2

league in the United States and Canada. 1

5.

The BC Lions is incorporated pursuant to the laws of British Columbia and

operates the BC Lions Football Team. The BC Lions Football Team is a privately-owned
professional sports team in the Canadian Football League (the CFL). 2
6.

As privately-owned organizations, the Whitecaps and the BC Lions are entitled to

keep information about their financial and business affairs confidential. They are not
governed by the disclosure requirements that apply to publicly-traded companies and
their records are not ordinarily subject to disclosure under FIPPA. 3
7.

The Scanned Attendance Figures at issue in this inquiry represent the actual

number of people whose tickets were scanned at the entrance gates at each game played
by the respective teams at BC Place. The Scanned Attendance Figures may be different
than the attendance numbers made publicly available by the teams to fans and media. 4
Relationship Between the Third Parties and the Public Body
8.

The Whitecaps and the BC Lions play their home matches and games at BC

Place, which is a stadium owned and operated by the public body, PavCo. 5 Both teams
have entered into license agreements with PavCo that govern their use of BC Place. 6
9.

The BC Lions license agreement has been made public as a result of the

Applicants previous FOI requests. Pursuant to the license agreement, the BC Lions pay
1

Affidavit of D. Ford sworn July 31, 2015 (Ford Affidavit) at para. 7.

Affidavit of D. Skulsky sworn July 28, 2015 (Skulsky Affidavit) at para. 6.
3
Ford Affidavit at para. 8; Skulsky Affidavit at para. 7.
4
Ford Affidavit at para. 9; Skulsky Affidavit at para. 8.
5
Ford Affidavit at para. 11; Skulsky Affidavit at para. 10.
6
Ford Affidavit at para. 12; Skulsky Affidavit at para. 11.
2

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rent for the use of BC Place on the basis of revenues from Net Ticket Sales. The
amount of rent paid by the Whitecaps and the BC Lions is completely independent of the
Scanned Attendance Figures sought by the Applicant in this proceeding. 7
10.

While the BC Lions are obligated under the license agreement to deliver to PavCo

a statement of revenues generated from Net Ticket Sales, this is in no way related to
the Scanned Attendance Figures sought by the Applicant in these proceedings. 8
Confidentiality of the Scanned Attendance Figures
11.

The Scanned Attendance Figures are treated as highly confidential by both the

Whitecaps and BC Lions. To the extent that the Scanned Attendance Figures are shared
with Ticketmaster and PavCo, this is done in confidence. 9
ARGUMENT
12.

The Whitecaps and BC Lions submit that the disclosure of the Scanned

Attendance would be harmful to their business interests, and that PavCo is required to
refuse to disclose the information under s. 21(1) of FIPPA.
Disclosure harmful to business interests of a third party
13.

Section 21(1) of FIPPA establishes a three-part test to determine whether a public

body is required to refuse to disclose third party information. The section reads:
Disclosure harmful to business interests of a third party
21 (1) The head of a public body must refuse to disclose to an applicant
information
7

Ford Affidavit at para. 13; Skulsky Affidavit at para. 13.

Skulsky Affidavit at para. 13.
9
Ford Affidavit at paras. 14-20; Skulsky Affidavit at paras. 17-20.
8

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(a) that would reveal

(i)
(ii)

trade secrets of a third party, or

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)

(ii)

(iii)
(iv)

14.

harm significantly the competitive position or

interfere significantly with the negotiating position
of the third party,
result in similar information no longer being
supplied to the public body when it is in the public
interest that similar information continue to be
supplied,
result in undue financial loss or gain to any person
or organization, or
reveal information supplied to, or the report of, an
arbitrator, mediator, labour relations officer or other
person or body appointed to resolve or inquire into
a labour relations dispute.

For the reasons set out below, the Whitecaps and BC Lions submit that PavCo is

required by s. 21(1) of FIPPA to refuse to disclose the Scanned Attendance Figures to the
Applicant.
1) The Scanned Attendance Figures constitute commercial information of the
Whitecaps and the BC Lions
15.

The first part of the s. 21(1) test requires that the disputed information would, if

disclosed, reveal a third partys commercial information or other of the specified kinds of
information.
16.

For the purposes of s. 21(1)(a)(ii), commercial information relates to a

commercial enterprise but need not be proprietary in nature or have an independent

market or monetary value. The information itself must be associated with the buying,
selling or exchange of the entitys goods or services. An example is a price list, or a list

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of suppliers or customers. Another example is a third-party contractors proposed and

actual fees and percentage commission rates and descriptions of the services it agreed to
provide to a public body. Financial information often has been applied, together with
commercial information, in a proposal or contract about the goods and services delivered
and the prices that are charged for those goods or services: Order F13-20, 2013 BCIPC
27 at para. 14. Information does not need to be particularly unique or commercially
valuable to qualify as commercial information. If it reveals something of the way a third
partys business is conducted, it qualifies as commercial information: Order F13-28, 2013
BCIPC 37 at para. 22.
17.

The Whitecaps and BC Lions submit that the Scanned Attendance Figures are the

commercial information of and about the third parties. The number of persons whose
tickets are scanned as attending at a particular game or match is directly associated with
the buying of the third parties goods and services. It is analogous to a list of customers or
the enrolment information discussed in Order F13-28. Moreover, the Scanned Attendance
Figures are the commercially valuable information of the Whitecaps and BC Lions and
competitors of the Whitecaps and BC Lions would be able to use such information to the
detriment of the Whitecaps and BC Lions.
2) The Scanned Attendances Figures were supplied in confidence
18.

To be protected from disclosure to applicants under FIPPA, third party

information must meet the two requirements established under s. 21(1)(b). The test
requires that the information must have been supplied to the public body and the third
party must have done so in confidence. The requirements under s. 21(1)(b) were
summarized in Order 01-39, [2001] B.C.I.P.C.D. No. 40 as follows:

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[26] 3.3.2 Supplied in Confidence - The second part of the s. 21(1) test
requires CPR to show that the information in issue was supplied,
explicitly or implicitly, in confidence. The cases have frequently
discussed separately the question of whether the information was
supplied by the third party from the question of whether it was supplied
in confidence. I will first consider the question of confidentiality and
then turn to the supply requirement.
[27] 3.3.2.1 in confidence - Information is supplied, explicitly or
implicitly, in confidence within the meaning of s. 21(1)(b) of the Act if, in
all of the circumstances, it can be objectively regarded as having been
provided in confidence with the intention that it be kept confidential...
...
[29] The Freedom of Information and Protection of Privacy Policy and
Procedures Manual, Ministry of Government Services, Information and
Privacy Branch, Vol. 1, to which CPR referred in its submissions sets out
some factors relevant to the determination of confidentiality (at Section
C.4.12, pp. 13-4). They include:

the existence or lack of an explicit statement of confidentiality,

request for confidentiality, confidentiality agreement, or other
objective evidence which indicates the parties understanding that
the information would be kept confidential,

the type of information, including whether it would normally be

kept confidential by the third party; and

whether the information was supplied voluntarily by the third

party, informally requested by the public body or required by the
public body, where failure to supply the information would have
negative consequences for the third party.

[30] The Manual also states that the confidentiality requirement in s.

21(1)(b) means that the information is provided with an expectation that
its privacy will be maintained.
[31] In the present case, the focus of the confidentiality assessment is
on whether the information in the disputed records was provided in
confidence and whether, assessed objectively, it can be said that there was
a reasonable expectation that it be maintained in confidence. The parties
submissions focussed on the interpretation of the confidentiality clauses
contained in the agreements as explicit evidence of a reasonable
expectation of continued confidentiality.

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19.

Unlike many of the cases that come before the Commissioner, there is no doubt

that the Scanned Attendance Figures are information supplied by the third parties rather
than negotiated with the public body. The evidence is that the Scanned Attendance
Figures are obtained using handheld scanning devices that scan tickets presented by
attendees at Whitecaps and BC Lions games. The Scanned Attendance Figures are in
turn collected in a computer software system owned by Ticketmaster. At all times the
Scanned Attendance Figures are confidential business information belonging to the
Whitecaps and BC Lions and do not belong to PavCo. 10 As said in Order F14-36, 2014
BCIPC 39 at para. 23, previous orders have found that a summary drafted by a public
body using information derived from third parties is supplied because the third parties are
the original source of the information.
20.

Furthermore, the Scanned Attendance Figures are supplied by the Whitecaps and

BC Lions to the public body under circumstances of implicit confidentiality. In Order

F14-36, 2014 BCIPC 39 at para. 28, the following test for information supplied implicitly
in confidence was relied upon:
The cases in which confidentiality of supply is alleged to be implicit are
more difficult. This is because there is, in such instances, no express
promise of, or agreement to, confidentiality or any explicit rejection of
confidentiality. All of the circumstances must be considered in such cases
in determining if there was a reasonable expectation of confidentiality.
The circumstances to be considered include whether the information was:
1. communicated to the public body on the basis that it was confidential
and that it was to be kept confidential;
2. treated consistently in a manner that indicates a concern for its
protection from disclosure by the affected person prior to being
communicated to the public body;
10

Ford Affidavit at paras. 14- 20; Skulsky Affidavit at paras. 14-20.

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3. not otherwise disclosed or available from sources to which the public

has access;
4. prepared for a purpose which would not entail disclosure.
21.

The Scanned Attendance Figures are provided to the public body with the

intention that they be kept confidential. The Scanned Attendance Figures are not shared
by either the Whitecaps or the BC Lions with the public, are not information gathered for
the purposes of public disclosure, and are not available from other sources. Rather, it is
the announced attendance that is provided to the public. 11

22.

In the case of both the Whitecaps and BC Lions, the evidence is that the Scanned

Attendance Figures are treated as highly sensitive and confidential information even
within their own organizations. Within the Whitecaps, the information is shared only on a
need to know basis and only with individuals who require the information to deliver on
their job requirements. This means that only the senior executive team, business
intelligence team, and select members of the sales team are provided with the Scanned
Attendance Figures. 12 Within the BC Lions, only senior executives and select members
of management are privy to the Scanned Attendance Figures. 13

23.

While the Whitecaps share the Scanned Attendance Figures with the MLS league

office, the information is aggregated with data from clubs across the league and
individual club data is not shared with other clubs that compete in the MLS. 14 To the

11

Ford Affidavit at para. 14-21; Skulsky Affidavit at para. 14-20, 23.

Ford Affidavit at para. 14.
13
Skulsky Affidavit at para. 14.
14
Ford Affidavit at para. 15.
12

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extent that the BC Lions share the Scanned Attendance Figures with the CFL, this is only
done with the consent of the BC Lions and with an expectation of confidentiality. 15

24.

The Scanned Attendance Figures are similarly shared by the Whitecaps and the

BC Lions with Ticketmaster and PavCo pursuant to an expectation of confidentiality. The

expectation of confidentiality is based, in part, on the many years of dealings between the
parties where this type of attendance information has never been publically released by
PavCo through the freedom of information process, or otherwise. 16 Both the Whitecaps
and the BC Lions have further entered into private and confidential commercial
arrangements with Ticketmaster whereby the Scanned Attendance Figures are shared on
a confidential basis. 17 The agreement between the BC Lions and Ticketmaster contains
an express term regarding confidentiality. 18

25.

The Scanned Attendance Figures thus meet the supplied in confidence test

under s. 21(1)(b) of FIPPA.

3) Disclosure of the Scanned Attendance Figures will significantly harm the

Whitecaps and the BC Lions
26.

Section 21(1)(c) of FIPPA requires that it be established that disclosure of the

requested information could reasonably be expected to cause significant harm to the

competitive position of a third party, interfere significantly with the negotiating
position of a third party, or result in undue financial loss or gain. The authorities
establish that evidence of the harm or loss must be more than speculation, but the third
15

Skulsky Affidavit at para. 16.

Ford Affidavit at para. 16; Skulsky Affidavit at para. 17.
17
Ford Affidavit at para. 18; Skulsky Affidavit at para.19.
18
Skulsky Affidavit at paras. 17 & 19.
16

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party is not required to establish certainty of harm. The statutory standard is whether the
disclosure could reasonably be expected to cause harm.

27.

The Commissioner in Order 00-10, [2000] B.C.I.P.C.D. No. 11 outlined the

standard of proof required to establish the harm set out in s. 21(1)(c) of FIPPA, as
follows:

There is no need to prove that harm of some kind will, with certainty, flow
from disclosure; nor is it enough to rely upon speculation. Returning
always to the standard set by the Act, the expectation of harm as a result of
disclosure must be based on reason.

To sum up for present purposes, the standard of proof for harms-based

exceptions is to be found in the wording of the Act here, whether the
disclosure of information could reasonably be expected to cause the
specific harm to be protected against. Evidence of speculative harm will
not meet the test, but it is not necessary to establish certainty of harm. The
quality and cogency of the evidence must be commensurate with a
reasonable persons expectation that the disclosure of the requested
information could cause the harm specified in the exception. The
probability of the harm occurring is relevant to assessing the risk of harm,
but mathematical likelihood will not necessarily be decisive where other
contextual factors are at work.
28.

With respect to what constitutes significant harm, the Commissioner in Order

00-10 stated:

The next point is that s. 21(1)(c)(i) requires proof that disclosure could
reasonably be expected to harm significantly the competitive position
of a third party. Use by the Legislature of the word significantly is to be
contrasted with the language used in s. 17(1), which protects certain public
body interests where harm to the public body including to its financial
interests could reasonably be expected to flow from disclosure of
information. By adding the word significantly in s. 21(1)(c)(i), the
Legislature clearly indicated that something more than harm is needed.
As is discussed below, by choosing a standard of significant harm, the
Legislature clearly contemplated situations where disclosure could simply
harm the interests of a private business, but still be permitted.

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It is neither possible nor wise to attempt an exhaustive definition of what

is meant by harm significantly. It is something more than mere harm,
but it is difficult to go further than that in defining it. At the very least, the
party bearing the burden of proof must prove that the anticipated harm is,
when looked at in light of the circumstances affecting the third partys
competitive position or negotiating position, a material harm to that
partys competitive position. Among other things, in determining whether
a feared harm is significant, the extent of the harm in relation to the
assets or revenues of the third party may be relevant
29.

The Whitecaps and the BC Lions submit that the disclosure of the Scanned

Attendance Figures could reasonably be expected to result in significant harm to their

competitive position, interfere significantly with their negotiation position, result in
undue financial loss to the third parties, and result in undue financial gain to their
competitors.

30.

Firstly, releasing the Scanned Attendance Figures will not provide accurate

insight into the number of persons actually attending Whitecaps or BC Lions games at
BC Place. This places the Whitecaps and BC Lions, which are private organizations, in
the unfair position of having to justify why the Scanned Attendance Figures are different
than announced attendance. For example, people such as volunteers and participants in a
half-time show, or others who enter the building on credentials rather than tickets, enter
through an employee entrance and are not counted in the Scanned Attendance Figures. 19
Further, at times the handheld scanning devices used to collect the Scanned Attendance
Figures malfunction and attendees may not be included in the Scanned Attendance
Figures. 20 Public perception is extremely important to professional sports teams such as
the Whitecaps and BC Lions and the release of inaccurate information is damaging to the
reputation of the third parties.
19
20

Skulsky Affidavit at para. 21. See also Ford Affidavit at para. 24.
Skulsky Affidavit at para. 22. Ford Affidavit at para. 25.

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31.

Secondly, the evidence of the third parties is that attendance, sponsorship and

advertising are key to their financial operations. Any information that (unfairly) calls into
question the accuracy of the announced attendance relied upon by the teams in marketing
themselves to sponsors and advertisers is likely to cause significant harm to their
competitive position, interfere significantly with their negotiating position, and result in
undue financial loss. 21

32.

The Whitecaps and BC Lions further operate in a very competitive entertainment

market. For the Whitecaps, they directly compete against other professional and amateur
sports teams, which locally include the BC Lions, the Vancouver Canucks, the
Vancouver Canadians, and the Vancouver Giants. The Whitecaps compete with these
teams for sponsorships, advertisers, and ticket buyers. In addition, the Whitecaps
compete with other entertainment sources that depend upon consumers discretionary
entertainment dollars. 22 The BC Lions similarly rely upon attendance by fans, corporate
sponsorships, and advertising for its continued financial viability. In Vancouver, the BC
Lions directly compete with the Vancouver Canucks, the Whitecaps, Vancouver Giants,
and Vancouver Canadians for corporate sponsorships from a limited pool of potential
sponsors. 23

33.

The release of the Scanned Attendance Figures of the Whitecaps and BC Lions

provides an unfair advantage to these competitors. Given the confidential nature of the
Scanned Attendance Figures, their competitors have no other access to such information
and will unduly financially benefit by having access to information that in the ordinary
21

Ford Affidavit at paras. 23, 27, & 28 and Skulsky Affidavit at para. 26.
Ford Affidavit at para. 22.
23
Skulsky Affidavit at para. 24.
22

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course would remain confidential. The Whitecaps and BC Lions will not gain a similar
benefit as these competitors primarily operate from privately owned facilities such that
the Applicant has no means of obtaining and publicly distributing such information.
Where competitors will acquire competitively valuable information, effectively for
nothing, the gain to the competitor will be found to be undue: Order 00-10, [2000]
B.C.I.P.C.D. No. 11.

CONCLUSION
34.

The third party Whitecaps and BC Lions submit that the exception found in

section 21(1) of FIPPA has been met and the public body PavCo is therefore required to
refuse to disclose the Scanned Attendance Figures to the Applicant. This is consistent
with the balance directed by the Supreme Court of Canada between granting access to
information and protecting other interests: Merck Frosst Canada Ltd. v. Canada (Health),
2012 SCC 3, [2012] 1 SCR 23 at paras. 1-2. The third parties submit that in this case, the
Applicant has no right of access to the confidential and proprietary information of private
businesses where that information has never belonged to the public body and provides no
insight into the operations of the public body. The objectives of freedom of information
legislation are not served by allowing such legislation to be employed as a means of
accessing and disseminating confidential information regarding private businesses.

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All of which is respectfully submitted.

Karl E. Gustafson, Q.C.

Melanie J. Harmer
Counsel for the Third Parties,
Vancouver Whitecaps FC LP &
BC Lions Football Club Inc.

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