Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 31 The disclosure of information that is not already in the public domain that is shown to give competitors a head start in developing competing products, or to give them a competitive advantage in future transactions may, in principle, meet the requirements. The evidence would have to demonstrate that there is a direct link between the disclosure and the apprehended harm and that the harm could reasonably be expected to ensue from disclosure.71 However, asserting disclosure would create a more competitive environment does not give rise to a reasonable expectation of a material financial loss or prejudice to a third party’s competitive position.72 “Could reasonably be expected to” means there must be a reasonable expectation that disclosure could result in financial loss or gain to a third party. The Supreme Court of Canada set out the standard of proof for harms-based provisions as follows: 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”…73 The government institution and third party do not have to prove that a harm is probable but need to show that there is a “reasonable expectation of harm” if any of the information were to be released. In British Columbia (Minister of Citizens’ Service) v. British Columbia (Information and Privacy Commissioner), (2012), Bracken J. confirmed it is the release of the information itself that must give rise to a reasonable expectation of harm. Government institutions should not assume that the harm is self-evident. The harm must be described in a precise and specific way to support the application of the provision. 71 Canadian Bank Note Limited v Saskatchewan Government Insurance, 2016 SKKB 362 (CanLII) at [55] relying on Merck Frosst Canada Ltd. v. Canada (Health), [2012] 1 SCR 23, 2012 SCC 3 (CanLII) at [219]. 72 Canadian Pacific Hotels Corp. v. Canada (Attorney General), 2004 FC 444 (CanLII) at [35]. 73 Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), [2014] 1 SCR 674, 2014 SCC 31 (CanLII) at [54].
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