The Ontario Superior Court of Justice has dismissed a motion brought by TPA North America Inc. seeking the disclosure of unredacted financial documents from a competitor and the City of Burlington1. The decision, rendered by Associate Justice Nitchke on December 18, 2025, addresses the balance between a plaintiff’s right to discovery and the protection of sensitive commercial information belonging to third parties. This legal battle stems from a 2020 procurement process for a travel time system that has led to years of litigation over allegations of unfair bidding practices and lost profits.
The dispute originated on February 5, 2020, when the City of Burlington issued a request for proposals for the supply and delivery of a travel time system for its municipal transport network. TPA North America Inc., a supplier specializing in traffic and parking automation, submitted a proposal in response to the request. Another company, The Get Go Inc., which is referred to in court documents as GGI, also participated in the bidding process. Following an evaluation of the submissions, the City of Burlington elected to enter into a contract with GGI rather than TPA.
Dissatisfied with the outcome, TPA initiated a lawsuit against the City of Burlington in February 2021. In its statement of claim, TPA alleged that it suffered lost profits because it was not awarded the contract. The company claimed that the City had engaged in unfair public procurement practices, suggesting that the successful bidder had been predetermined or that the process was designed in a way that made it impossible for TPA to succeed. For its part, the City of Burlington maintained that the request for proposals was intended to canvass options without committing to a formal tender call. The City argued that no contract was formed with the bidders during the submission phase and that TPA simply did not achieve the highest score during the evaluation. Furthermore, the City pointed to a clause in the request for proposals that reserved its right to accept a bid other than the one with the highest score, asserting that it acted fairly and in good faith throughout the process.
As the litigation progressed, the parties engaged in the standard discovery process, including the exchange of documents and oral examinations. The case was eventually set down for trial, and expert reports were exchanged between the parties. A pretrial conference took place in July 2025, followed by an exit pretrial in early October 2025. It was during these later stages of the litigation that a dispute arose regarding specific financial documents related to the ongoing contract between the City of Burlington and GGI.
During the discovery phase, the City produced a purchase order in a redacted form. However, no invoices from GGI were initially provided. In April 2025, shortly before the scheduled pretrial, the City delivered an expert report that referenced redacted invoices submitted by GGI to the municipality. The expert noted that the redactions in these documents limited the scope of their opinion. TPA subsequently requested unredacted copies of these invoices and the purchase order. In July 2025, the City provided copies that remained redacted, citing privacy concerns and obligations under the Municipal Freedom of Information and Protection of Privacy Act. TPA argued that any privacy issues could be managed through a protective order, but the court found that TPA did not provide sufficient evidence or specific details to support such an arrangement.
In response to the continued redactions, TPA brought a motion seeking an order to compel GGI, a non-party to the lawsuit, to produce unredacted copies of the purchase order and nine specific invoices. Alternatively, TPA asked the court to order the City of Burlington to produce the same unredacted documents. The City took no formal position on the motion, while GGI strongly opposed the request. GGI argued that the documents contained confidential proprietary information that should not be shared with TPA, which is a direct competitor in the travel time system market.
Before addressing the merits of the document production, the court had to decide whether to grant TPA leave to bring the motion at such a late stage. Under Rule 48.04 of the Rules of Civil Procedure, once an action is set down for trial, a party must obtain leave from the court to initiate further motions. Associate Justice Nitchke looked to the established legal framework for such requests, which involves a flexible consideration of several factors. These factors include what the party knew when the trial record was passed, whether there has been a substantial change in circumstances, the purpose of the request, and whether the opposing party would suffer prejudice.
GGI argued that leave should be denied because TPA should have known that invoices would be generated over the life of the contract and could have requested this information much earlier during discovery. The court agreed that TPA could have been more diligent and should not have waited until the eve of the trial to seek these records. However, the judge also observed that the City’s delivery of an expert report containing redactions occurred at a late stage and served as a catalyst for the motion. Because the pretrial judge had previously allowed the motion to be scheduled and GGI would not suffer significant prejudice as a non-party, the court granted leave for the motion to be heard.
The court then turned to the request for production from GGI under Rule 30.10, which governs the discovery of documents from non-parties. For such an order to be granted, the moving party must prove that the documents are relevant to a material issue and that it would be unfair to proceed to trial without them. TPA argued that the unredacted invoices were necessary to calculate damages. Specifically, TPA pointed out that the original request for proposals allowed for price increases tied to the Consumer Price Index. TPA suggested that during the high inflation periods associated with the COVID-19 pandemic, GGI might have received price increases exceeding the inflation index. TPA speculated that if it had won the contract, it might have received similar increases, and therefore, its expert needed the unredacted data to properly quantify lost profits.
Associate Justice Nitchke found this argument to be based on speculation rather than evidence. The court noted that there was no proof GGI had actually received any such price increases. Citing prior case law, the judge emphasized that evidence anchored in speculation is not the same as legal relevance. The court distinguished between a party’s want for information to assist an expert’s preferred methodology and a legal need for documents to establish the existence of damages. Because TPA could not prove that the documents related to a material disputed issue, the court found the requirement of relevance was not met.
On the issue of fairness, the court observed that both the plaintiff’s and the defendant’s experts were working with the same redacted information, meaning neither side had an unfair advantage. The judge also considered the late stage of the proceedings, noting that the trial was scheduled to begin only two weeks after the motion was heard. If the court had ordered the production of new documents, it would likely have triggered a need for supplemental expert reports and a significant delay in a case that was already five years old. Consequently, the court refused to compel GGI to produce the records.
Finally, the court examined whether the City of Burlington should be forced to provide the unredacted documents under Rules 30.02 and 30.07. These rules require parties to disclose all relevant documents in their possession. TPA argued that municipal privacy laws should not override discovery obligations in a civil lawsuit. While the court acknowledged that litigation often requires the disclosure of information that might otherwise be protected by privacy statutes, it found that the specific nature of the pricing data warranted protection.
Associate Justice Nitchke highlighted section 10(1) of the Municipal Freedom of Information and Protection of Privacy Act, which protects third-party information such as trade secrets or commercial and financial data supplied in confidence. The court found that disclosing specific unit prices and rate calculations would likely result in competitive harm to GGI. The judge noted that there was no evidence that the pricing strategies of the two companies had ever been made public. Ordering the disclosure of this data to a direct competitor would give TPA an unfair advantage in future bidding processes.
The court concluded that even if the documents were marginally relevant, there were compelling reasons to maintain their confidentiality. The interest in protecting sensitive commercial information and preventing competitive harm outweighed TPA’s desire for the data to refine its damages calculations. As a result, the motion was dismissed in its entirety. The court ordered TPA to pay GGI legal costs in the amount of $5,086.23, finding this sum to be fair and proportionate. No costs were awarded for or against the City of Burlington.
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