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Federal (Canada)Access to Information ActWell-founded

Canada Mortgage and Housing Corporation (Re), 2023 OIC 13

Organization: Canada Mortgage and Housing CorporationComplainant: Anonymous applicant
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Plain-language brief

The complainant alleged that the Canada Mortgage and Housing Corporation (CMHC) improperly withheld information in response to an access request for final versions of documents. CMHC initially claimed exemptions under paragraphs 18(a), 18(b), 19(1), 20(1)(b), 21(1)(a), 21(1)(b), and section 23 of the Access to Information Act. During the investigation, the scope of the complaint was narrowed, and CMHC voluntarily disclosed some information previously withheld under paragraphs 18(a), 18(b), 21(1)(a), and 21(1)(b). The remaining information was withheld under paragraph 20(1)(b), concerning third-party financial, commercial, scientific, or technical information. The Information Commissioner found that CMHC and the third parties (TD Bank Financial Group and Andrew Kalotay Associates, Inc.) failed to demonstrate that the information met the requirements of paragraph 20(1)(b), as the third parties did not provide representations and CMHC could not show that all conditions for the exemption were met. Consequently, the Commissioner ordered CMHC to disclose all information withheld under paragraph 20(1)(b). CMHC agreed to implement the order.

Key issues
  1. 1Whether s.18(a) ATIA (government trade secrets, government financial, commercial, scientific or technical information) was properly applied
  2. 2Whether s.18(b) ATIA (competitive position of government institutions, negotiations by government institutions) was properly applied
  3. 3Whether s.19(1) ATIA (personal information) was properly applied
  4. 4Whether s.20(1)(b) ATIA (confidential third-party financial, commercial, scientific or technical information) was properly applied
  5. 5Whether the information is financial, commercial, scientific or technical under s.20(1)(b) ATIA
  6. 6Whether the information is confidential under s.20(1)(b) ATIA
  7. 7Whether the third party supplied the information to a government institution under s.20(1)(b) ATIA
  8. 8Whether the third party has consistently treated the information as confidential under s.20(1)(b) ATIA
  9. 9Whether s.21(1)(a) ATIA (advice or recommendations) was properly applied
  10. 10Whether s.21(1)(b) ATIA (accounts of consultations or deliberations) was properly applied
  11. 11Whether s.23 ATIA (solicitor-client privilege) was properly applied
Outcome breakdownFavours: Applicant / complainant
  • Voluntary disclosure: Some information voluntarily disclosed
  • s.20(1)(b) exemption: Exemption not upheld
  • Disclosure of records: Records ordered disclosed
  • Compliance with order: Institution agreed to implement order
Outcome

Complaint well founded — disclosure ordered

Reasoning

The institution failed to demonstrate that the information withheld under paragraph 20(1)(b) met all the requirements of the exemption, particularly as the third parties did not provide representations and the institution could not establish confidentiality or that the information was supplied by the third party in all instances.

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Decision notes
Recommended action / remedy

The Information Commissioner ordered the Canada Mortgage and Housing Corporation to disclose all information at issue withheld under paragraph 20(1)(b) of the Access to Information Act.

Statutes considered
  • s.18(a) ATIA
  • s.18(b) ATIA
  • s.19(1) ATIA
  • s.20(1)(b) ATIA
  • s.21(1)(a) ATIA
  • s.21(1)(b) ATIA
  • s.23 ATIA
  • s.30(1)(a) ATIA
  • s.35(2)(c) ATIA
  • s.36.1(1) ATIA
  • s.36.3 ATIA
  • s.37(4) ATIA
  • s.43 ATIA

This summary is for informational purposes only and does not constitute legal advice.

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