Innovation, Science and Economic Development Canada (Re), 2022 OIC 22
The complainant alleged that Innovation, Science and Economic Development Canada (ISED) improperly withheld information under paragraph 20(1)(c) of the Access to Information Act. The request sought records related to job creation estimates and estimated jobs maintained figures for projects that received assistance between 2011 and 2018. The complaint's scope was narrowed to information concerning eleven third parties, with only Toyota Motor Manufacturing Canada (Toyota) providing representations to support the exemption claim. The Commissioner found that neither Toyota nor ISED demonstrated a clear and direct connection between disclosure and a risk of material financial loss or harm to Toyota's competitive position, beyond mere speculation. Arguments regarding potential public misunderstanding were also deemed insufficient to meet the legal test for harm under s.20(1)(c), especially given that an explanatory note could address such concerns. Consequently, the Commissioner concluded that the information did not qualify for the exemption. The complaint was found to be well founded, and the Commissioner recommended full disclosure, though ISED indicated it would not fully implement the recommendation for some Toyota-related information.
- 1Whether s.20(1)(c) ATIA (financial impact on a third party) applies to job creation estimates and estimated jobs maintained figures
- 2Whether disclosure could result in material financial loss or gain to a third party
- 3Whether there is a reasonable expectation of harm beyond a mere possibility
- 4Whether disclosure could injure the competitive position of a third party
- 5Whether arguments of public misunderstanding are sufficient to meet the legal test for harm under s.20(1)(c)
- 6Whether an explanatory note could prevent potential harm to a third party
- 7Whether ISED met its burden of proof for applying s.20(1)(c) to information where third parties did not provide representations
- Application of s.20(1)(c): Exemption not justified
- Risk of financial loss: Not demonstrated by institution
- Risk to competitive position: Not demonstrated by institution
- Public misunderstanding argument: Deemed insufficient for exemption
- Complaint outcome: Well founded
- Disclosure recommendation: Full disclosure recommended
Complaint well founded — disclosure recommended
The Commissioner found that neither the institution nor the third party (Toyota) provided sufficient evidence to demonstrate a clear and direct link between the disclosure of the information and a reasonable expectation of material financial loss or harm to competitive position, as required by paragraph 20(1)(c). Arguments about public misunderstanding were not considered valid grounds for exemption, especially when an explanatory note could mitigate such concerns.
The Commissioner recommended that the Minister of Innovation, Science and Industry disclose all information related to the 11 third parties listed in the reduced scope of the complaint.
- s.20(1)(c) ATIA
- s.20(5) ATIA
- s.20(6) ATIA
- s.20(2) ATIA
- s.20(4) ATIA
- s.37(4) ATIA
- s.41 ATIA
- s.43 ATIA
This summary is for informational purposes only and does not constitute legal advice.
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