Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 60 o Why would they arise. Subsection 19(3) includes the requirement that the information “could reasonably be expected” to be in the public interest. The meaning of the phrase “could reasonably be expected to” in terms of harm-based exemptions was considered by the Supreme Court of Canada in Ontario (Community Safety and Correctional Service) v. Ontario (Information and Privacy Commissioner), (2014). Although this part of the provision does not contemplate harm, the threshold proposed by the Supreme Court is instructive: 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”… 3. Could the public interest in disclosure reasonably be expected to clearly outweigh the importance of the financial loss or gain, prejudice to competitive positions or interference with contractual relationships relating to a third party Clear means free from doubt; sure; unambiguous.139 Use of the word “clearly” means the test is rigorous, limiting the applicability of the public interest “override”.140 Outweigh means to be of more importance or value than something else.141 139 Garner, Bryan A., 2019. Black’s Law Dictionary, 11th Edition. St. Paul, Minn.: West Group at p. 317. 140 Treasury Board of Canada Secretariat, Access to Information Manual, Chapter 11.14.11. Available at https://www.canada.ca/en/treasury-board-secretariat/services/access-information-privacy/accessinformation/access-information-manual.html#cha11_14. Accessed September 4, 2019. 141 Garner, Bryan A., 2019. Black’s Law Dictionary, 11th Edition. St. Paul, Minn.: West Group at p. 1330.
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