Innovation, Science and Economic Development Canada (Re), 2022 OIC 22

Date: 2022-05-03
OIC file number: 3218-01586
Institution file number: A-2018-00527

Summary

The complainant alleged that Innovation, Science and Economic Development Canada (ISED) had improperly withheld information under paragraph 20(1)(c) (financial impact on a third party) of the Access to Information Act in response to an access request for records related to job creation estimates and estimated jobs maintained figures for projects that received assistance during a specific time period between 2011 and 2018.

The scope of the complaint was narrowed to information related to eleven (11) third parties.

Only one of the third parties, Toyota Motor Manufacturing Canada (Toyota), provided representations in support of the exemption. However, neither Toyota nor ISED demonstrated that the information at issue met all of the requirements of the exemption.

The Information Commissioner recommended that ISED disclose all information at issue.

ISED gave notice that it would not fully implement the recommendation and maintains that some information related to Toyota would continue to be withheld pursuant to paragraph 20(1)(c).

The complaint is well founded.

Complaint

[1] The complainant alleged that Innovation, Science and Economic Development Canada (ISED) had improperly withheld information under paragraph 20(1)(c) (financial impact on a third party) of the Access to Information Act in response to an access request for records related to job creation estimates and estimated jobs maintained figures for projects that received assistance during a specific time period between 2011 and 2018.

[2] Over the course of the investigation, the complainant decided it was no longer necessary for the Office of the Information Commissioner (OIC) to investigate the information withheld by ISED relating to all of the third parties. The complainant decided to narrow the scope of the complaint down to the following 11 third parties:

Advantech Wireless Technologies Inc. (formerly Advantech Wireless Inc.)
Canadian Wood Council
FPInnovations
Habitat for Humanity Ontario Gateway North (formerly Habitat for Humanity Muskoka)
Huntsville Art Society
Linamar Corporation
Nishnawbe Aski Development Fund
Sault Major Hockey Association Inc.
Science North – Science Nord
Smarter Alloys Inc.
Toyota Motor Manufacturing Canada Inc.

Investigation

[3] The OIC sought representations from all 11 third parties concerning the information exempted by ISED under paragraph 20(1)(c).

[4] Nishnawbe Aski Development Fund provided written consent for disclosure of the information related to its organization. Habitat for Humanity Ontario Gateway North (formerly Habitat for Humanity Muskoka), Huntsville Art Society, Sault Major Hockey Association Inc. and Science North – Science Nord replied that they had no objection to the release of the information related to them.

[5] Advantech Wireless Technologies Inc., Canadian Wood Council, FPInnovations, Linamar Corporation and Smarter Alloys Inc. were asked to provide representations, but did not do so.

[6] Only one of the third parties, Toyota Motor Manufacturing Canada (Toyota), provided representations in support of the exemption.

Paragraph 20(1)(c) : financial impact on a third party

[7] Paragraph 20(1)(c) requires institutions to refuse to release information that, if disclosed, could reasonably be expected to have a material financial impact on a third party (that is, a private company or individual, but not the person who made the access request) or harm its competitive position.

[8] To claim this exemption with regard to financial impact on a third party, institutions must show the following:

Disclosing the information could result in material financial loss or gain to the third party.
There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[9] To claim this exemption with regard to competitive position, institutions must show the following:

Disclosing the information could injure the competitive position of the third party.
There is a reasonable expectation that this prejudice could occur—that is, the expectation is well beyond a mere possibility.

[10] When these requirements are met, and the third party to whom the information relates consents to its disclosure, subsection 20(5) requires institutions to reasonably exercise their discretion to decide whether to release the information.

[11] In addition, when the requirements are met, subsection 20(6) requires institutions to reasonably exercise their discretion to decide whether to release the information for public health or public safety reasons, or to protect the environment, when both of the following circumstances exist:

disclosure of the information would be in the public interest; and
the public interest in disclosure clearly outweighs any financial impact on the third party, any prejudice to the security of the third party’s structures, networks or systems, or competitive position, or any interference with its contractual or other negotiations.

[12] However, subsections 20(2) and 20(4) specifically prohibit institutions from using paragraph 20(1)(c) to refuse to release information that contains the results of product or environmental testing carried out by or on behalf of a government institution, unless the testing was done for a fee for an individual or an organization other than a government institution.

Does the information meet the requirements of the exemption?

[13] ISED applied paragraph 20(1)(c) to the job creation estimates and estimated jobs maintained figures. ISED has agreed to disclose the information related to the third parties who do not oppose disclosure of the information related to them. ISED, however, did not agree to disclose the information related to the third parties who did not provide representations along with the information relating to Toyota.

[14] For paragraph 20(1)(c) to apply, there must be a clear and direct connection between the disclosure of specific information and a risk of harm well beyond the merely possible or speculative (see Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras. 197, 206).

[15] Toyota was the only third party that provided representations in support of ISED’s application of paragraph 20(1)(c). The OIC sought representations from ISED in support of Toyota’s claims, as the OIC’s preliminary view was that Toyota’s representations do not go beyond speculation. Toyota provided no clear link between disclosure and a risk of material financial loss or harm to its competitive position. ISED provided several arguments in support of Toyota’s claims, but also failed to provide any clear link between disclosure of the information at issue and a risk of harm well beyond the merely possible. I am therefore not convinced that the withheld information relating to Toyota is exempt under paragraph 20(1)(c) of the Act.

[16] I note that ISED and Toyota both made representations regarding the potential for the public to misunderstand the information relating to Toyota, should it be released. However, such arguments are insufficient to meet the legal test for “harm” provided in paragraph 20(1)(c); ISED and Toyota have not demonstrated otherwise in this particular investigation. (see Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, para. 224).

[17] In any event, in light of Toyota’s representations on public misunderstanding, and given the findings of the Federal Court in Concord Premium Meats Ltd. v. Canada (Food Inspection Agency), 2020 FC 1166, I am not convinced that the potential harm to Toyota that is envisioned could not be prevented by the addition of an explanatory note. This would address the issue of potential public misunderstanding.

[18] A pre-existing explanatory note, applicable to the entire record at issue, appears to have sufficed to enable ISED to disclose an “Estimated Jobs Created” figure for one of the Toyota projects.

[19] In response to the OIC’s question about an explanatory note specific to Toyota, ISED submitted that “an explanatory note would not be sufficient to communicate the nuance” involved. However, ISED failed to demonstrate a clear link between disclosure of the information and a risk of harm well beyond the merely possible if an explanatory note were included.

[20] I am not convinced that ISED’s representations about the alleged insufficiency of an explanatory note, meet its burden of proof with respect to the information at issue in this investigation.

[21] I am not convinced by ISED’s submission regarding potential competitive disadvantage to Toyota, since no evidence and detail have been provided to substantiate it.

[22] I acknowledge ISED’s agreement to disclose one “Estimated Jobs Maintained” figure on the basis that it has been made public as part of a Toyota announcement.

[23] However, I am not convinced that the “Estimated Jobs Created” figure for the same project is distinguishable and that it meets the criteria for exemption under paragraph 20(1)(c).

[24] Turning to the information of other third parties that ISED has decided to continue to withhold (i.e. Advantech Wireless Technologies Inc., Canadian Wood Council, FPInnovations, Linamar Corporation and Smarter Alloys Inc.), I am not convinced that ISED and those third parties have met their burden of demonstrating that the criteria for exemption under paragraph 20(1)(c) are met. ISED’s representations with regard to this information are cursory, while those third parties did not provide representations to my office.

[25] Based on the representations or lack thereof received from ISED and the third parties, I come to the conclusion that none of the information at issue qualifies for this exemption. Insufficient evidence has been provided to demonstrate that there is a clear link between the disclosure of the information at issue and a risk of harm well beyond the merely possible.

Result

[26] The complaint is well founded.

Recommendation

I recommend 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.

Institutions must abide by the terms of subsection 37(4) when disclosing any records in response to my recommendation.

On February 21, 2022, I issued my initial report to the Minister of Innovation, Science and Industry setting out my recommendation.

On April 1, 2022, ISED’s Corporate Secretary gave me notice that ISED would not be fully implementing my recommendation. ISED maintains that the Estimated Jobs Created figure for Toyota Motor Manufacturing Canada Inc.’s (Toyota) project with an Offer Accepted Date of 03/16/2012 and the Estimated Jobs Maintained figure for Toyota’s project with an Offer Accepted Date of 03/11/2013 meet the requirements of paragraph 20(1)(c) and it will not disclose them. ISED agrees to disclose the rest of the information at issue.

I have provided this report to Habitat for Humanity Ontario Gateway North, the Huntsville Art Society, the Nishnawbe Aski Development Fund, the Sault Major Hockey Association Inc., Science North – Science Nord and Toyota Canada Inc. The other third parties did not make any representations to the OIC in respect to the complaint; therefore, they are not entitled to receive a copy of this report.

Section 41 of the Act provides a right to any person, excepting institutions, who receives this report to apply to the Federal Court for a review. Complainants must apply for this review within 35 business days after the date of this report. When they do not, third parties may apply for a review within the next 10 business days. The person who applies for a review must serve a copy of the application for review to the relevant parties, as per section 43.