Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 36 Prejudice in this context refers to detriment to the competitive position of a third party.78 Competitive position means the information must be capable of use by an existing or potential business competitor, whether or not that competitor currently competes for the same market share. For example: • Information that discloses the profit margin on a private company’s operations; • Marketing plans, including market research surveys, polls; or • Information that reveals the internal workings of a private company.79 2. Could release of the record reasonably be expected to result in the prejudice 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 harm. Further, that the harm could reasonably be expected to ensue from disclosure.80 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.81 “Could reasonably be expected to” means there must be a reasonable expectation that disclosure could prejudice the competitive position of 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 78 Adapted from Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 149. 79 British Columbia Government Services, FOIPPA Policy and Procedures Manual at https://www2.gov.bc.ca/gov/content/governments/services-for-government/policiesprocedures/foippa-manual/disclosure-harmful-business-interests-third party. Accessed August 28, 2019. 80 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]. 81 Canadian Pacific Hotels Corp. v. Canada (Attorney General), 2004 FC 444 (CanLII) at [35].
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