CITY OF MONTRÉAL v. EBC INC.: THE COURT OF APPEAL REFUSES TO KEEP THE AMOUNT OF A CLAIM CONFIDENTIAL

In Ville de Montréal c. EBC inc., 2026 QCCA 733, the Québec Court of Appeal reaffirmed that the open court principle remains the rule. The Court emphasized that a party alleging harm resulting from the disclosure of information must establish that harm through evidence; otherwise, the strong presumption in favour of public judicial proceedings prevails. The Court therefore concluded that a contractor suing a municipality for lost profits arising from the cancellation of a tender process cannot shield the amount of its claim from public disclosure based solely on hypothetical concerns regarding a future procurement process.

Background

In 2023, the City of Montréal issued a public call for tenders for the construction of Phase 3 of the Montréal-East Industrial Collector.[1] Three companies submitted bids. EBC Inc.’s bid, for approximately $96 million, was the lowest compliant bid. Following a challenge by another bidder whose submission had been rejected, the City decided to cancel the tender, citing a major procedural defect.

Taking the position that the City had unlawfully failed to award it the contract, EBC brought an action in damages seeking to recover the profits it would have earned had the contract been awarded to it.[2] However, in its originating application, EBC did not disclose the exact amount being claimed, merely alleging that it substantially exceeds $100,000, and sought a confidentiality order with respect to that information.

The Superior Court’s Decision

The Superior Court granted EBC’s application for a confidentiality order.

According to the trial judge, public disclosure of the amount claimed would allow EBC’s competitors to infer elements of its pricing structure, including its profit margin, thereby potentially compromising the integrity of a future tender process involving the same project.[3]

The judge accordingly found that there was a serious risk that the integrity of the tendering process could be compromised, thereby jeopardizing a significant commercial interest, and ordered that the amount claimed remain confidential until either a judgment was rendered on liability or a new contract arising from a new call for tenders was awarded.[4]

The Court of Appeal Reiterates the Applicable Test

In a majority decision authored by Justice Harvie and concurred in by Justice Lachance, the Court of Appeal overturned the Superior Court’s judgment.

At the outset, the Court noted that article 12 of the Code of Civil Procedure is broad enough to allow the amount claimed in a proceeding to be the subject of a confidentiality order.[5] The amount of a claim is indeed “information” within the meaning of that provision.

However, the mere fact that such a measure is available does not relieve the party requesting it from meeting the stringent criteria established by the Supreme Court of Canada, notably in Sierra Club[6] and Sherman Estate.[7] To obtain a confidentiality order, the applicant must demonstrate:[8]

that disclosure of the information would create a serious risk to an important interest that has a public dimension;
that the order is necessary because no other reasonable measure would adequately address that risk; and
that the benefits of the order outweigh its negative impact on the fundamental principle of open court proceedings.

The Court placed particular emphasis on the first criterion. It is not enough to invoke a commercial interest or an important public interest; the party seeking confidentiality must demonstrate that disclosure of the information creates a serious risk to that interest.[9] Hypothetical concerns or mere speculation are insufficient to overcome the strong presumption in favour of public disclosure.

The Court further reiterated that the commercial interest relied upon cannot be limited to the private interests of the party seeking confidentiality.[10] It must possess a genuine public-interest dimension in order to justify a restriction on the open court principle.

Insufficient Evidence of the Alleged Risk

The principal takeaway from the decision lies in the Court’s analysis of the “serious risk” requirement. According to the Court of Appeal, EBC failed to produce any evidence establishing that disclosure of the amount claimed would create a serious risk to the integrity of a future tender process.[11]

The confidentiality request was not supported by an affidavit or expert evidence. EBC’s position was essentially that, by subtracting the amount of lost profits claimed from its 2023 bid price, competitors could reconstruct its cost structure and adjust their strategy in a future tender process.[12] The Court concluded, however, that this alleged risk was unsupported by any evidence and remained largely speculative. The majority therefore rejected EBC’s argument that the harm constituted an “objectively discernable injury” capable of being inferred through logical reasoning.

On the one hand, several years had already passed since the original call for tenders. On the other hand, nothing established that any future tender process would involve the same characteristics, market conditions, or economic parameters.[13]

The Court observed that even if the amount of lost profits became public, that information alone would not reveal a detailed breakdown of costs or the methodology EBC might use to prepare a future bid.[14] Consequently, EBC failed to rebut the strong presumption in favour of open court proceedings.

The Court added that, even if disclosure of the amount claimed could arguably place EBC at some competitive disadvantage, that private commercial interest alone was insufficient to justify a restriction on the principle of open court. The interest invoked must have a public-interest component and cannot merely serve to protect the applicant’s commercial interests.[15] While the Court acknowledged that the principles of transparency, fairness, impartiality, and integrity governing public procurement constitute a genuine and important public interest, it held that EBC failed to demonstrate, through evidence, any prejudicial effect on the tendering process. As a result, the first branch of the test was not satisfied.

The Importance of Proportionality

The Court also criticized the trial judge for failing to conduct a genuine proportionality analysis. [16]The negative effects of a confidentiality order must be weighed against its benefits. In this case, the information sought to be protected was a fundamental aspect of the litigation: the amount of the claim itself.[17]

The Court stressed that this was not ancillary information, but rather information central to understanding the true nature of the dispute. This consideration carried even greater weight because the defendant was a municipality.[18] Where a claim potentially involves public funds, citizens have a legitimate interest in knowing the magnitude of the claim asserted against a public authority. In that context, the public interest in transparency tips the balance decisively in favour of disclosure.

For the majority, even if a serious risk had been established, the negative impact of such an order on the principle of open court would have clearly outweighed its benefits.

Justice Schrager’s Dissent

Justice Schrager would have dismissed the appeal. In his view, disclosure of EBC’s anticipated profit margin could indeed provide competitors with a strategic advantage in any future tender process relating to the same project.

He considered that a more extensive evidentiary record was not required, as the risk could reasonably be inferred from the circumstances of the case and the realities of the procurement process. In fact, he viewed such an evidentiary burden as both impractical and unfair.[19] Justice Schrager also emphasized that a temporary confidentiality order limited solely to the amount claimed would have only minimally impaired the open court principle.

It is worth noting that Justice Schrager relied, in part, on a decision of the Nova Scotia Court of Appeal (Resolve Business Outsourcing Income Fund v. Canadian Financial Wellness Group Inc., 2014 NSCA 98), in which a confidentiality order was granted to protect confidential commercial documents whose disclosure could have compromised the fairness of an imminent bidding process.

Although, in that case, the confidentiality of the amount claimed was not itself at issue, the court ordered the protection of certain information to prevent competing bidders from obtaining access to material information regarding the affected bidder that was not equally available to it in respect of its competitors.[20] Justice Schrager viewed this decision as illustrating the principle that preserving the integrity of a procurement process may, in certain circumstances, justify limiting public access to court proceedings, particularly where fair and open competition among bidders is at stake.[21]

He further considered that requiring EBC to disclose its lost-profit claim could have a chilling effect on access to the courts, which is itself an important public policy consideration.

Key Takeaways

Three practical lessons emerge from Ville de Montréal v. EBC inc.:

The amount claimed in a legal proceeding may, in theory, be the subject of a confidentiality order.
However, a party seeking such relief must present compelling evidence of a serious, real and non-hypothetical risk.
Where litigation involves a public body and potentially public funds, the open court principle calls for a particularly high degree of transparency.

In summary, the decision does not completely foreclose confidentiality orders relating to the amount of a claim or other commercially sensitive bidding information. It does, however, reaffirm that such orders remain exceptional and must be supported by convincing evidence of a serious risk rather than mere assumptions or speculative concerns.

[1] Ville de Montréal v. EBC inc., 2026 QCCA 733, par. 1.

[2] Ibid, par. 2.

[3] EBC inc. v. Ville de Montréal, 2025 QCCS 503, par. 26-27.

[4] Ibid, par. 30.

[5] Supra note 1, par. 24.

[6] Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41.

[7] Sherman Estate v. Donovan, 2021 SCC 25.

[8] Supra note 1, par. 32.

[9] Ibid, par. 33 et 34.

[10] Ibid, par 48.

[11] Ibid, par. 41.

[12] Ibid, par. 42-44.