Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 32 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.74 Exemption from disclosure should not be granted based on 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”…75 Some relevant questions that may assist are:76 • What kind of harm is expected from disclosure. • How will the loss or gain specifically occur. • How much money is involved. • Will the loss or gain affect the financial performance of the third party? How? To what degree. • How old is the information. If the information is not current, why would disclosure still adversely affect the third party. • Has similar information about the third party been made public in the past. If so, what was the impact. Was the impact quantifiable (e.g., lost sales or revenues). • Is information of this nature available about competitors of the third party. • Are there examples in other businesses where disclosure of similar information led to material financial loss or gain. If so, describe and quantify the financial loss or gain. Why is the situation parallel to that of this third party. • What actions could the third party take to counteract potential financial loss or gain knowing the information would be disclosed. In Astrazeneca Canada Inc. v. Canada (Minister of Health), the Federal Court stated that proof of harm for the equivalent provisions in the federal Access to Information Act, required 74 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. 75 Canadian Bank Note Limited v Saskatchewan Government Insurance, 2016 SKKB 362 (CanLII) at [49] relying on Merck Frosst Canada Ltd. v. Canada (Health), [2012] 1 SCR 23, 2012 SCC 3 (CanLII) at [204]. 76 Adapted from Information Commissioner of Canada resource, FOIPPA Policy Definitions. Available at https://www.oic-ci.gc.ca/en/investigators-guide-interpreting-act/section-201cd-questions. Accessed August 28, 2019.
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