Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 5, Third Party Information. Updated 22 February 2023. 26 Subclause 18(1)(c)(i) of LA FOIP is a mandatory, harm-based exemption. It permits refusal of access in situations where disclosure of information could reasonably be expected to result in financial loss or gain to a third party. 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).67 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).68 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.69 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.70 “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: 67 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. 68 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. 69 Canadian Bank Note Limited v Saskatchewan Government Insurance, 2016 SKKB 362 (CanLII) at [55] relying on Merck Frosst Canada Ltd. v. Canada (Health), [2012] 1 SCR 23, 2012 SCC 3 (CanLII) at [219]. 70 Canadian Pacific Hotels Corp. v. Canada (Attorney General), 2004 FC 444 (CanLII) at [35].
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