Guide to FOIP-Chapter 4

Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 152 section 17 of FOIP is not a harms-based provision, the threshold provided by the Court for “could reasonably be expected to” is instructive: This Court in Merck Frosst adopted the “reasonable expectation of probable harm” formulation and it should be used wherever the “could reasonably be expected to” language is used in access to information statutes. As the Court in Merck Frosst emphasized, the statute tries to mark out a middle ground between that which is probable and that which is merely possible. An institution must provide evidence “well beyond” or “considerably above” a mere possibility of harm in order to reach that middle ground: paras. 197 and 199. This inquiry of course is contextual and how much evidence and the quality of evidence needed to meet this standard will ultimately depend on the nature of the issue and “inherent probabilities or improbabilities or the seriousness of the allegations or consequences”… Contents means the things that are contained in something.565 Draft legislation or subordinate legislation refers to preliminary versions of legislative instruments, such as draft versions.566 It means that the Act in question has not yet been introduced to the Legislative Assembly, or the subordinate legislation has not been approved by Cabinet, as the case may be.567 Subordinate legislation is legislation that derives from any authority other than the sovereign power in a state and that therefore depends for its continued existence and validity on some superior or supreme authority. A regulation is often referred to as subordinate legislation.568 Subordinate legislation can include regulations, rules, orders, bylaws, or ordinances.569 For more on subordinate legislation, including what is included in this phrase, see The Canadian Bar Review, Subordinate Legislation by Elmer Driedger. 565 Pearsall, Judy, Concise Oxford Dictionary, 10th Ed., (Oxford University Press) at p. 307. 566 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 166. Adopted in SK OIPC Review Report 086-2018 at [77] and [78]. 567 British Columbia Government Services, FOIPPA Policy Definitions at Accessed April 23, 2020. 568 Garner, Bryan A., 2019. Black’s Law Dictionary, 11th Edition. St. Paul, Minn.: West Group at p. 1082. 569 Driedger, E., The Canadian Bar Review, Subordinate Legislation, Vol. XXXVIII, March 1960, No. 1: Ottawa, at p. 2. See also SK OIPC Review Report 025-2020 at [92] where the Commissioner found that a draft zoning bylaw qualified as “subordinate legislation” for purposes of subsection 17(1)(e) of FOIP.