Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 24 July 2025. 127 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” … Drafts and redrafts of positions, plans, procedures, criteria, instructions may be protected by the exemption. A public servant may engage in writing any number of drafts before communicating part or all their content to another person. The nature of the deliberative process is to draft and redraft until the writer is sufficiently satisfied that they are prepared to communicate the results to someone else. All the information in those earlier drafts informs the result even if the content of any one draft is not included in the final version.457 b. By or on behalf of the local authority The negotiations must be conducted by the local authority or on behalf of the local authority. On behalf of means “for the benefit of”.458 A person does something “on behalf of” another, when he or she does the thing in the interest of, or as a representative of, the other person.459 2. Or does the record contain considerations that relate to those negotiations? Subsection 16(1)(c) of LA FOIP extends its protection beyond the positions, plans, procedures, criteria or instructions to considerations that relate to the negotiations. 457 John Doe v. Ontario (Finance), [2014] 2 SCR 3, 2014 SCC 36 (CanLII) at [48] to [51]. 458 Encon Group Inc. v. Capo Construction Inc., 2015 BCSC 786 (CanLII) at [34]. 459 Conibear v. Dahling, 2010 BCSC 985 (CanLII) at [34].
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