Canadian privacy & access decisions

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.

• Whether s.20(1)(c) ATIA (financial impact on a third party) applies to job creation estimates and estimated jobs maintained figures
• Whether disclosure could result in material financial loss or gain to a third party
• Whether there is a reasonable expectation of harm beyond a mere possibility
• Whether disclosure could injure the competitive position of a third party
• Whether arguments of public misunderstanding are sufficient to meet the legal test for harm under s.20(1)(c)
• Whether an explanatory note could prevent potential harm to a third party
• Whether ISED met its burden of proof for applying s.20(1)(c) to information where third parties did not provide representations