Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 24 July 2025. 191 The following two-part test can be applied: 1. What is the financial loss or gain being claimed? Financial loss or gain must be monetary, have a monetary equivalent or value (e.g., loss of revenue or loss of corporate reputation).662 2. Could release of the record reasonably be expected to result in financial loss or gain to a third party? For this exemption to apply there must be objective grounds for believing that disclosing the information could result in loss or gain to a third party measured in monetary terms (e.g., loss of revenue).663 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 apprehended harm and that the harm could reasonably be expected to ensue from disclosure.664 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.665 “Could reasonably be expected to” means there must be a reasonable expectation that disclosure could result in financial loss or gain to 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 662 Adapted from British Columbia Government Services, FOIPPA Policy and Procedures Manual at https://www2.gov.bc.ca/gov/content/governments/services-for-government/policiesprocedures/foippa-manual/policy-definitions#undue_fin_gain. Accessed August 29, 2019. 663 Adapted from British Columbia Government Services, FOIPPA Policy and Procedures Manual at https://www2.gov.bc.ca/gov/content/governments/services-for-government/policiesprocedures/foippa-manual/policy-definitions#undue_fin_gain and Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 108. 664 Canadian Bank Note Limited v Saskatchewan Government Insurance, 2016 SKQB 362 (CanLII) at [55] relying on Merck Frosst Canada Ltd. v. Canada (Health), [2012] 1 SCR 23, 2012 SCC 3 (CanLII) at [219]. 665 Canadian Pacific Hotels Corp. v. Canada (Attorney General), 2004 FC 444 (CanLII) at [35].
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