Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 43 Government institutions and third parties 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.93 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”…94 The Federal Court in Société Gamma Inc. v. Canada (Department of the Secretary of State) (1994), 56 C.P.R. (3d) 58, interpreted the equivalent provision in the federal Access to Information Act as requiring that “it must refer to an obstruction to those negotiations and not merely the heightening of competition for the third party which might flow from disclosure”.95 Furthermore, a distinction must be drawn between actual contractual negotiations and the daily business operations of a third party.96 When determining whether disclosure could interfere with contractual or other negotiations of a third party, the following questions can be asked to assist:97 • What negotiations would be affected by disclosure. • Are these negotiations ongoing. • Have the negotiations been concluded. 93 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. 94 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]. 95 Société Gamma Inc. v. Canada (Department of the Secretary of State), (April 27, 1994), T-1587-93, T1588-93 (F.C.T.D.) at [10]. 96 Canada (Information Commissioner) v. Canada (Minister of External Affairs) (T.D.), [1990] 3 FC 665, 1990 CanLII 7951 (FC) at [24]. 97 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 29, 2019.
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