Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 223 The expectation of harm must be reasonable, but it need not be a certainty. The evidence of harm must: • Show how the disclosure of the information would cause harm; • Indicate the extent of harm that would result; and • Provide facts to support the assertions made.778 Exemption from disclosure should not be granted on the basis of fear of harm that is fanciful, imaginary, or contrived. Such fears of harm are not reasonable because they are not based on reason…the words “could reasonably be expected” “refer to an expectation for which real and substantial grounds exist when looked at objectively”…779 Some relevant questions that may assist are: 780 • Does the third party perceive that disclosure would likely prejudice its competitive position. • How would disclosure impact on the competitive position of the third party. • Would it have an adverse effect on sales or marketing. How. • Would disclosure reveal plans or strategy. If so, what kind of plans or strategy. o Product launch o Product approvals o Marketing plans o Business acquisitions o Asset acquisitions o Others • How would knowledge of these plans specifically prejudice the third party’s competitive position. • Is there an indication of how a competitor could use the information to its advantage, i.e., by developing competing pricing strategies. • Has the information or same subject matter been disclosed elsewhere. 778 Treasury Board of Canada Secretariat, Access to Information Manual, Chapter 11.14.4. Available at https://www.canada.ca/en/treasury-board-secretariat/services/access-information-privacy/accessinformation/access-information-manual.html#cha11_14. Accessed August 29, 2019. 779 Canadian Bank Note Limited v Saskatchewan Government Insurance, 2016 SKQB 362 (CanLII) at [49] relying on Merck Frosst Canada Ltd. v. Canada (Health), [2012] 1 SCR 23, 2012 SCC 3 (CanLII) at [204]. 780 Adapted from Information Commissioner of Canada resource, Investigator’s Guide to Interpreting the Act, Section 20(1)(c) & (d): Questions. Available at https://www.oic-ci.gc.ca/en/investigators-guideinterpreting-act/section-201cd-questions. Accessed August 28, 2019.
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