Shannex Health Care Management Inc. v. Nova Scotia (Health)

Shannex Health Care Management Inc. v. Nova Scotia (Health) Court Supreme Court Date 2004-03-23 Citation 2004 NSSC 54 Docket 206979 A Judge/Registrar/Adjudicator Edwards, Frank C. (Honourable Justice) Document Type Decision Relations Library Sheet - Shannex Health Care Management Inc. v. Nova Scotia (Health) - 2004 NSSC 54 - 2004-03-23 - Library Sheet Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Shannex Health Care Management Inc. v. Nova Scotia (Health), 2004 NSSC 54 Date: 20040323 Docket: 206979(A) Registry: Halifax Between: Shannex Health Care Management Inc. Appellant v. Attorney General of Nova Scotia representing the Nova Scotia Department of Health Respondent Judge: The Honourable Justice Frank Edwards Heard: March 2, 2004, in Halifax, Nova Scotia Counsel: Harvey L. Morrison, Q.C., for the Appellant Catherine J. Lunn, for the Respondent By the Court: [1] This is an Appeal under the Freedom of Information and the Protection of Privacy Act (“FOIPOP Act”) from a decision of the Department of Health (“DOH”) to release certain budget summaries related to the operation of the Appellant’s nursing homes. [2] Background: The DOH received an application on or about February 14, 2003, under the FOIPOP Act for records consisting of budgets, plans, and materials used in determining per diem rates for all nursing homes receiving government funding including the most recent per diem increases. [3] In accordance with Section 22 of the FOIPOP Act, the Appellant, as Third Party, was given notice of such application by the Province by letter dated February 20, 2003, which was sent to some 73 nursing homes in the Province, including those owned by the Appellant. [4] By letter dated February 25, 2003, the Appellant objected to the release of the requested information in respect to all five homes owned/operated by the Appellant, being: Cedarstone, Parkstone, Harbourstone, Maplestone, and Arbourstone. [5] By letter dated April 4, 2003, forwarded to all subject nursing homes in the Province (being Third Parties under the FOIPOP Act) the head of the public body through DOH advised of its decision to give access to the following documents: a. Long Term Care Memorandum, dated October 28, 2002; b. Approved budget 2002/2003, effective November 1, 2002 (Summary page only) and also advised of the Third Party’s right to appeal this decision. [6] The Appellant requested in writing by letter dated April 24, 2003, a review by the Review Officer, claiming the disclosure of the records in question would: a. be an unreasonable invasion of the privacy of Shannex; b. could reasonably be expected to harm the competitive position or interfere with the negotiating position of Shannex. [7] The Report of the Review Officer was rendered on July 16, 2003, recommending the records in issue be disclosed. [8] By letter dated August 8, 2003, the head of the public body through the DOH advised of its decision to follow the recommendation of the Review Officer to disclose the records and further advised the Appellant of its right to appeal pursuant to Section 41 of the FOIPOP Act. [9] The Appellant subsequently appealed to this Court; on September 8, 2003, the Appellant filed a Notice of Appeal, dated September 5, 2003, pursuant to Section 41(1) of the FOIPOP Act, objecting to disclosure. [10] The records in issue consist of 6 documents which have been provided to the Court in a sealed envelope as per Practice Memorandum No. 28 for in camera examination by the Court pursuant to Section 42(1)(b) of the FOIPOP Act: a. Long Term Care Memorandum, dated October 28, 2002; b. Approved Budget 2002/03 for Cedarstone; c. Approved Budget 2002/03 for Harbourstone; d. Approved Budget 2002/03 for Maplestone; e. Approved Budget 2002/03 for Arbourstone; f. Approved Budget 2002/03 for Parkstone. [11] Issues: The sole issue in this Appeal is whether Section 21(1) of the FOIPOP Act applies to the information which DOH proposes to disclose. If it does, then the information must not be disclosed. [12] Legislative Background: The express purpose and legislative intent of the FOIPOP Act is enunciated in Section 2 of the Act: “Purpose of Act 2 The purpose of this Act is (a) to ensure that public bodies are fully accountable to the public by (i) giving the public a right of access to records, (ii) giving individuals a right of access to, and a right to correction of, personal information about themselves, (iii) specifying limited exceptions to the rights of access, (iv) preventing the unauthorized collection, use or disclosure of personal information by public bodies, and (v) providing for an independent review of decisions made pursuant to this Act; and (b) to provide for the disclosure of all government information with necessary exemptions, that are limited and specific, in order to (i) facilitate informed public participation in policy formulation, (ii) ensure fairness in government decision‑making, (iii) permit the airing and reconciliation of divergent views; (c) to protect the privacy of individuals with respect to personal information about themselves held by public bodies and to provide individuals with a right of access to that information. 1993, c. 5, s. 2.” [13] The Nova Scotia Act is unique in that it expressly calls for full accountability to the public (2(a)) and to provide for disclosure subject only to necessary exemptions which are specific and limited (2(b)). The Nova Scotia Court of Appeal has pointed out the importance of keeping sight of this uniqueness in examining FOIPOP cases: “53 Before turning to an analysis of the particular provisions of the FOIPOP Act material to this case, I wish to comment briefly on how the legislation in Nova Scotia compares to similar legislation in other provinces in Canada. Such a comparison together with the statute's own legislative history may be useful when considering the meaning to be attached to its provisions. 54 Having compared all of the freedom of information and privacy acts in the other provinces across Canada, I find that the purpose clause in the Nova Scotia statute is unique. This is the only province whose legislation declares as one of its purposes a commitment to ensure that public bodies are ‘fully accountable to the public’. (emphasis added) By comparison, British Columbia's Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165 states that the purposes of that statute ‘...are to make public bodies more accountable to the public ...’. In Alberta their purpose clause is worded differently than that of either Nova Scotia or British Columbia. It does not state whether it is to make public bodies more or fully accountable. The statute in that province seems much more restrictive and is focussed mainly upon allowing individuals some access to information held by public bodies (Freedom of Information and Protection of Privacy Act, Stats. Alberta 1994, c. F‑18.5, as amended). There is no purpose section in the Saskatchewan legislation. There are two statutes in that province. One is more general and the other applies to local authorities. Manitoba's legislation, the Freedom of Information and Protection of Privacy Act, Stats. M. 1997, c. 50, as amended, has a purpose clause that is almost identical to that of Alberta. The purpose section of the Ontario legislation is not as comprehensive as the Nova Scotia Act (Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F‑31, as amended). Quebec has two statutes, one giving access to documents held by public bodies and the other protecting personal information in the private sector. The first statute has no purpose section. The second statute has an ‘object’ section, as it relates to the civil code of Quebec. New Brunswick and PEI have no equivalent legislation. Newfoundland's Freedom of Information Act, R.S.N. 1990, c. F‑25, as amended, is much shorter than most other statutes. Its purpose section says nothing about government accountability. FOI statutes in the Yukon and the Northwest Territories are identical and mirror British Columbia's statute. Their legislation makes clear that the ‘... purposes of this Act are to make public bodies more accountable ... and to protect personal privacy ...’. 55 In summary, not only is the Nova Scotia legislation unique in Canada as being the only Act that defines its purpose as an obligation to ensure that public bodies are fully accountable to the public; so too does it stand apart in that in no other province is there anything like s. 2(b). (Emphasis added) As noted earlier, 2(b) gives further expression to the purpose of the Nova Scotia statute that being: b) to provide for the disclosure of all government information with necessary exemptions, that are limited and specific, in order to (i) facilitate informed public participation in policy formulation, (ii) ensure fairness in government decision‑making; (iii) permit the airing and reconciliation of divergent views; 56 Thus the FOIPOP Act in Nova Scotia is the only statute in Canada declaring as its purpose an obligation both to ensure that public bodies are fully accountable and to provide for the disclosure of all government information subject only to ‘necessary exemptions that are limited and specific’. (Emphasis added) 57 I conclude that the legislation in Nova Scotia is deliberately more generous to its citizens and is intended to give the public greater access to information than might otherwise be contemplated in the other provinces and territories in Canada. Nova Scotia's lawmakers clearly intended to provide for the disclosure of all government information (subject to certain limited and specific exemptions) in order to facilitate informed public participation in policy formulation; ensure fairness in government decision making; and permit the airing and reconciliation of divergent views. No other province or territory has gone so far in expressing such objectives. (O'Connor v. Nova Scotia [2001] N.S.J. No. 360, at paras 53‑ 57; also applied in Chesal v. Nova Scotia (Attorney General) [2003] 419)” (Emphasis added) [14] The FOIPOP Act should be “interpreted liberally so as to give clear expression to the Legislature's intention that such positive obligations would enure to the benefit of good government and its citizens.” (O’Connor v. Nova Scotia [2001] N.S.J. No. 360, at para 41) [15] This was also echoed by the Nova Scotia Court of Appeal in the earlier decision of Dickie v. Nova Scotia (Department of Health) [1998] N.S.J. No. 174, at para 14: “14 Because this Act is a remedial statute, it must be ‘interpreted to ensure the attainment of its objects’. See Interpretation Act, R.S.N.S., c. 235, s.9(5). Recently, in Re Rizzo & Rizzo Shoes Ltd. (1997), 154 D.L.R. (4th) 193, the Supreme Court of Canada emphasized the significant role that the purpose of a statute should play in the interpretation and application of its provisions. There the Court found that statutory interpretation could not be based on the plain wording of the legislation alone, but the words must be read in the context of the Act and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislative body. In my opinion, if there is a conflict between the literal meaning of the words and the clear purpose of the Act, any doubt arising from language difficulties may be resolved in favour of a broad and generous application of the purpose of the Act.” [16] The issue between the parties is the interpretation and application of Section 21(1) of the FOIPOP Act to the facts and circumstances of this case. The position of the Appellant, Shannex, is that the head of the public body should have refused to disclose the 6 documents comprising the records in issue because it would reveal information restricted by Section 21(1) of the FOIPOP Act. Specifically, Shannex claims the records in issue contain commercial/financial information on its operating expenses/profit, etc., for each of the five nursing homes, supplied in confidence to the DOH, disclosure of which would significantly harm the competitive or negotiating position of the Appellant in the marketplace and/or result in undue financial loss. [17] The relevant portion of Section 21(1) of the FOIPOP Act states: “Confidential information 21(1) The head of a public body shall refuse to disclose to an applicant information (a) that would reveal (ii) commercial, financial, ... information of 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, ...” [18] The wording of the corresponding section ( i.e., s. 21(1)) in the British Columbia legislation is almost identical in wording to our legislation. Section 17(1) of the Ontario Act has very similar statutory language to Nova Scotia’s Section 12(1). The policy considerations that underlie the rationale/purpose of this privacy provision were canvassed by the British Columbia Information and Privacy Commissioner in Order 03‑02 at paragraph 34: “It is instructive to look back at the policy consideration that underlie provisions such as s. 21(1) before examining the cases. Section 21(1) of the British Columbia Act is similar to s. 17(1) of the Ontario Freedom of Information and Protection of Privacy Act (‘Ontario Act’), which was enacted in 1987. In 1980, before enactment of the Ontario legislation, the Ontario Commission on Freedom of Information and Personal Privacy, known as the Williams Commission, addressed the question of third-party business information. The following relevant passage from the Commission’s report, Public Government for Private People, merits quotation in full (vol. 2, ch. 14, at pp. 312-314): BUSINESS INFORMATION The language of the exemptions relating to valuable business information varies from one jurisdiction to the next; nevertheless, there appears to be agreement as to the underlying purpose of such an exemption on the types of information which should be covered. It is accepted that a broad exemption for all information relating to businesses would be both unnecessary and undesirable. Many kinds of information relating to business concerns can be disclosed without harmful consequence to the firms. Exemption of all business-related information would do much to undermine the effectiveness of a freedom of information law as a device for making those who administer public affairs more accountable to those whose interests are to be served. Business information is collected by governmental institutions in order to administer various regulatory schemes, to assemble information for planning purposes, and to provide support services, often in the form of financial or marketing assistance, to private firms. All these activities are undertaken by the government with the intent of serving the public interest; therefore, the information collected should as far as is practicable, form part of the public record. For example, public scrutiny of the effectiveness with which governmental institutions discharge their responsibilities with respect to consumer protection or the protection of the environment requires information about the vigour with which enforcement mechanisms have been deployed against firms who refuse to comply with regulatory standards. The ability to engage in scrutiny or regulatory activity is not only of interest to members of the public but also to business firms who may wish to satisfy themselves that government regulatory powers are being used in an even-handed fashion in the sense that business firms in similar circumstances are subject to similar regulations [45]. In short, there is a strong claim on freedom of information grounds for access to government information concerning business activity. The strength of this claim is recognized in each of the freedom of information schemes we have examined in that none of these schemes simply exempts all information relating to the activities of business concerns.” (Emphasis added) [19] Case Law: Section 21(1), Nova Scotia FOIPOP Act, has only been judicially considered by this Court on one previous occasion in the case of Atlantic Highways Corp (Re) [1997] N.S.J. No. 238 (N.S.S.C.). In that case the FOIPOP application was for an agreement between the Province and private companies to build a toll highway. The Third Party argued that its negotiating position to build a highway in New Brunswick might be compromised by the disclosure of the information and pleaded the exemption to disclosure under Section 21(1) of the FOIPOP Act. The court held that: the Third Party did not have a proprietary interest in the information, that it was not supplied in confidence, there was insufficient prospect of the degree of harm contemplated by the section. [20] Section 21(1) has been considered by the Review Officer: “No Disclosure (s. 21 (1) exemption satisfied) ‑ ‘side letters’ to emergency services contract was exempt as the original information provided by the Third Party remained relatively unchanged FI‑99‑96 Nova Scotia (Department of Health) (Re)” [21] For the corresponding sections in their freedom of information legislation the jurisdictions of Ontario and British Columbia employ a “supplied in confidence” test that looks at whether there has been significant modification of the originally supplied information and determines whether disclosure of the records would permit the drawing of accurate inferences about information actually supplied to the institution/public body by the affected parties. [22] The following decisions in respect to Section 21(1) of the British Columbia Act are referred to: “Disclosure - records of WCB in regard to various employers’ experience-rated assessment rates were not held to be ‘supplied in confidence’ Overwaitea Food Group, a Division of Great Pacific Industries Ltd.v. British Columbia (Information and Privacy Commissioner) [1995] B.C.J. No. 247 - service contracts containing info of hourly rates, benefits, various charges, management fees, administrative fees, and amounts payable was held not to be ‘discrete or immutable information’ that remained unchanged, therefore was not supplied in confidence Jill Schmidt Health Services Inc. v. Ltd.v. British Columbia (Information and Privacy Commissioner) [2001] B.C.J. No. 79 - contracts (purchase of services agreements and crewing agreements) between CPR and West Coast Express were held to be negotiated, not supplied in confidence and failed to establish significant harm if released Canadian Pacific Railway v. British Columbia (Information and Privacy Commissioner) [2002] B.C.J. No. 848 - contracts for nursing services containing costing information originally provided was not held to have been supplied in confidence Order No. 03-15; British Columbia (Ministry of Attorney General) [2003] B.C.I.P.C.D. No. 15 No Disclosure (s. 21 (1) exemption satisfied) - records of product sales for each of five years for two competitive brewers was “supplied in confidence” under s. 36 of the Act which deemed information in the custody or control of the Liquor Distribution Branch to be confidential and significant harm to financial loss and competitive advantage was shown, if released Order No. 00-10; British Columbia (Ministry of Small Business, Tourism and Culture, Liquor Distribution Branch) [2000] B.C.I.P.C.D. No. 11 [23] The analogous Section 17(1) in the Ontario jurisdiction has also been considered: Disclosure - components of scores awarded to consulting firms bidding on highway projects were not exempt Ontario (Ministry of Transportation) v. Ontario (Information and Privacy Commissioner) [2004] O.J. No. 224 - records in regard to employers with high penalty ratings in five accident prevention programs, generated by the WCB based on data supplied by employers was not supplied in confidence - evidence as to the speculation of possible harm must be ‘detailed and convincing’ to satisfy the onus of establishing reasonable expectation of harm Ontario (Workers’ Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) [1998] O.J. No. 3485 [24] Analysis: The onus falls on the Appellant to prove the information it seeks to restrict falls within the specific and limited exemption of Section 21(1) of the FOIPOP Act. (See Section 45 (3)(b)) [25] For a record to qualify for exemption under Section 21(1), the Appellant, must satisfy each part of the following three-part test: “(a) the record must reveal information that is the commercial or financial information of the Appellant; (b) the information must have been supplied to the institution in confidence, either implicitly or explicitly; and (c) the prospect of disclosure of the record must give rise to a reasonable expectation that one of the harms specified Section 21(1)(c)(i) or (iii) will occur. (Atlantic Highways Corp (Re), supra) [26] First Requirement: Would disclosure of the records reveal commercial or financial information of the Appellant? [27] The records in issue contain financial budget information setting the per diem rate for each of the five nursing homes. The Respondent has conceded that the records reveal commercial and financial information of the Appellant. On this basis the first part of the Section 21(1) test has been met. [28] Second Requirement: Was such information supplied implicitly or explicitly in confidence? [29] In order to satisfy part two of the test, the Appellant must show that the information was supplied to the public body, either implicitly or explicitly in confidence. [30] Here there is no evidence of the records in question having been explicitly supplied in confidence to the DOH. In fact, DOH takes the position that the records were not provided by the Appellant, but are the records of DOH and as such it is DOH that has the proprietary interest in these records. I do not accept this argument by DOH. It is clear that the information in the budget summaries was derived substantially from the budget data supplied by the Appellant and as such remains the Appellant’s financial information. The fact that the summaries were prepared by the DOH does not take this information outside the scope of Section 21(1). The following passage from the decision of the Alberta Information and Privacy Commissioner, R.C. Clark in Re Alberta (Treasury), [1999] A.I.P.C.D. No. 20, paragraph 22 is pertinent: “Although, the financial and commercial information contained in the financial statements provided to Alberta Treasury, as a condition of the loan agreement, was provided with the reasonable expectation of confidentiality, the information withheld in the Records is an analysis authored by an employee of Alberta Treasury. This analysis was not supplied by the Third Parties. However, evidence showed that the information in the analysis is inextricably linked with the information actually supplied by the Third Parties. In other words, this information (analysis) would not exist if the Third Parties had not supplied the original commercial and financial information to Alberta Treasury.” [31] I am satisfied however that the face of the records do not contain any explicit statement of confidentiality. I am also satisfied that there is no evidence contained in the affidavits, or in the evidence elicited on cross-examination at the hearing, of any agreement between the parties that the Provincial Government accorded confidentiality to the records. Accordingly, the question to be examined at this stage is whether the records were supplied implicitly in confidence. [32] In that regard I have the evidence of Laura L. Scott, the Appellant’s Director of Finance. It was Ms. Scott who had face to face meetings with DOH officials at the time the Appellant’s financial information was submitted and afterward. On the basis of Ms. Scott’s evidence, I am satisfied that DOH was aware that the Appellant expected its financial information to be kept confidential (though, as noted, DOH never made an explicit undertaking to do so). Accordingly, I am satisfied that the Appellant has cleared the second hurdle under Section 21(1) and satisfied me that the financial information was supplied implicitly in confidence. [33] Third Requirement: Could disclosure of such information reasonably be expected (a) to harm significantly the competitive position of the Appellant or interfere significantly with its negotiating position? [Section 21(1)(c)(i)] or (b) to result in undue financial loss to the Appellant? [34] The threshold to meet the degree of probability of the categories of harm under Section 21(1)(c) is not low and must be at least a “logically and rationally based threshold of speculative proof”, not based on mere speculation without basis. The threshold was described by Kelly, J. in Atlantic Highways Corp (Re), supra, at paragraphs 45, 46: “A review of the wording used in the ‘harm of disclosure’ subsection makes it clear that the legislature seeks evidence of more than the possibility of some loss; it requires that it be shown that the information ‘reasonably’ be expected to ‘harm significantly’ or ‘interfere significantly’ in subsection (i) and ‘result in undue financial loss’ in subsection (iii). Such modifiers would seem to imply that the legislature requires a logically and rationally based threshold of ‘speculative proof’ of ‘harm’ or damages of some substance. I am not persuaded AHC has overcome the hurdles listed above, including the burden of demonstrating that it is their information. Although I am satisfied that the release of the information may be expected to cause one or both of the categories of harm to AHC, they have not satisfied me on the evidence to the extent that is required by subsection 21(1) that there is a sufficient prospect of the degree of harm that is contemplated by that subsection.” [35] Also see Canada (Information Commissioner) v. Canada (Information and Refugee Board) [1997] F.C.J. No. 1812. [36] In Atlantic Highways Corp (Re), supra, evidence given by the Third Party that release of the Omnibus Agreement with Nova Scotia government would interfere significantly with negotiations with another provincial government by losing their competitive advantage with other competitors, to build another highway was too speculative and not sufficient to meet the threshold for exemption under Section 21(1)(c). [37] The harm that the Appellant contends would flow from release of the records is outlined primarily in the Affidavit of Glenn Williams, deposed to on February 3, 2004. Inter alia, the Appellant asserts that release of such information would compromise or disadvantage their ability to: participate in “potential bidding” for additional beds in the Province, negotiate with existing and potential “private pay” residents, maintain a high occupancy rate, purchase existing facilities, maintain its alleged position as an “industry leader”. [38] In general, DOH takes the position that the Appellant’s evidence as to “harm” contemplated by Section 21(1) (c) is merely speculative and does not meet the required burden. [39] In regard to “potential bidding” for additional beds in the Province, the DOH states that the figures contained in the budgets are now “old figures” from previous years and it would not be of much use to competitors for future bidding. This argument is not persuasive. Both parties at the hearing appeared to acknowledge that the nursing home “business” is a stable one with no major fluctuations from year to year. While I accept that the utility of the information may be lessened by the passage of two or three years, I am satisfied that it could still be useful to competitors for future bidding. [40] I am more persuaded by the fact that the Appellant has not put forth any “detailed and convincing” evidence in respect to certain proposals or bids it wishes to participate in or knows for certain it will participate in. The evidence does not disclose that there will be competitive bidding with regard to awarding new long term care beds. The Appellant must establish more than the mere possibility of harm from the disclosure. This it has failed to do. [41] In regard to the four latter grounds noted above. I accept the submission of DOH that those arguments are without merit. The particulars of the financial information in the budget summaries would not be required by any competitors and/or existing or potential residents to take the particular modes of action that the Appellant says could happen if the information was released. [42] In regard to occupancy rate, for example, a competitor would not need to see the Appellant’s figures on the records in issue in order to rearrange/allot their budget to improve the quality of care and/or lower the per diem to attract more residents. Furthermore if there is to be a shortage of beds in the near future as alleged by the Appellant it is even less likely that the occupancy rate of the Appellant will be adversely affected; if there are not enough beds to go around, competitive quality of care or per diem would not dictate the occupancy rate - occupancy rates will be at their highest, available beds would be taken as soon as available. [43] Private pay residents are going to be concerned about the quality of care and per diem rates - specific knowledge of how much salaries/benefits cost the home, its operation and maintenance costs, and its profit, would not influence the decision of a private pay resident as to what home they choose to go to. It is difficult to see how the harm would flow from obtaining the records in issue. I agree with DOH that the Appellant’s position is pure speculation without sufficient basis. [44] In regard to purchasing existing facilities, DOH says that a potential Vendor would not have to know the figures on the records in issue to suggest to a purchaser such as the Appellant that the potential purchase facility could be made more profitable under their management. One would not need specific knowledge of the Appellant’s figures to make such a suggestion during negotiations. The bottom line is that the Appellant, the purchaser, would be the one to decide for itself whether the asset was worth purchasing to improve profit. There is no harm/competitive advantage to be seen on this alleged ground from release of the documents. I accept that argument. [45] Likewise, I am not persuaded by the industry leader arguments of harm in paragraphs 16, 17 of the Affidavit of Glenn Williams. DOH says that the figures contained in the records in issue are not sufficiently detailed to cause the type of harm alleged by the Appellant. While that contention is debatable, many factors other than getting budget figures would dictate the ability of other competitors to “copy the success of Shannex”. It has to be borne in mind that the nursing home business does not operate in a competitive commercial market. Since February 2001, all access to nursing home beds is subject to a policy of Singe Entry Access (SEA). There is a waiting list of persons who are seeking access to nursing homes. Should a potential client choose a bed from a Shannex competitor, the Shannex bed will be filled from the waiting list. Any resident who cannot “private pay” will be subsidized by DOH. The “business” can fairly be described as low risk. [46] Furthermore, in the context of a business heavily subsidized by public tax dollars, the public has the right to know how those dollars are being spent. Is the public getting value for the dollar? Who is benefiting and to what extent? The answers to these questions are the essence of accountability. The recipients of such subsidies should not expect the same degree of confidentiality that pertains in a competitive unsubsidized market. There must be detailed and convincing evidence to justify non disclosure. In this case, the DOH cannot be “fully accountable to the public” unless the budget summaries are disclosed. [47] The Appellant has not provided to this Court any specific financial data that would be “detailed and convincing” evidence of undue financial loss it might incur if the records in question were disclosed. [48] I therefore conclude that disclosure of the disputed information could not be reasonably expected to cause the Appellant significant harm within the meaning of Section 21(1). The Appellant has therefore not met the required burden of proof for the threshold as established by the Atlantic Highways Corp (Re) decision. [49] The Appeal is therefore dismissed and the information in question may be disclosed after the expiration of 30 days from the date an Order is signed. Order accordingly. J.