Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 37 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”…82 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. 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.83 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”…84 Some relevant questions that may assist are: 85 • 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. 82 Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), [2014] 1 SCR 674, 2014 SCC 31 (CanLII) at [54]. 83 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. 84 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]. 85 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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