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Transport Canada (Re), 2025 OIC 24

Date: 2025-03-31
OIC file number: 5820-03438
Access request number: A-2020-00216

Summary

The complainant alleged that Transport Canada 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. The request was for records related to Motor Vehicle Crash Test No. TC11-231, involving a 2011 Ford Focus, and conducted on March 15, 2012. The allegation falls under paragraph 30(1)(a) of the Act.

As per subsection 20(4), preliminary testing can be subject to exemption, if the requirements for exemption are met. Transport Canada and the third parties did not demonstrate that the requirements of paragraph 20(1)(c) were met, particularly in light of the explanatory note proposed by Transport Canada. Transport Canada had originally withheld the records out of a concern that misinterpreting them could result in harm. The courts have consistently found that explanatory notes can minimise the risk of misinterpretation of records leading to harm.

The Information Commissioner ordered that Transport Canada disclose the records in full and include an explanatory note with the disclosure. Transport Canada gave notice to the Commissioner that it would comply with the order. The complaint is well founded.

Complaint

[1]        The complainant alleged that Transport Canada 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. The request was for records related to Motor Vehicle Crash Test No. TC11-231, involving a 2011 Ford Focus, and conducted on March 15, 2012. The allegation falls under paragraph 30(1)(a) of the Act.

Investigation

[2]        When an institution withholds information related to a third parties, the third parties and/or the institution bear the burden of showing that refusing to grant access is justified.

[3]        The Office of the Information Commissioner (OIC) sought representations from the following third parties pursuant to paragraph 35(2)(c):

  • TOMY International, Inc.;
  • PMG Technologies;
  • Ford Motor Company of Canada (Ford Canada); and
  • The Children’s Hospital of Philadelphia.

[4]        Ford Canada responded that it does not oppose disclosure under the condition of an adequate explanatory note being included with the response. The other third parties did not respond to the OIC’s request for representations.

[5]        The OIC notified all third parties of my intention to order Transport Canada to disclose information relating to them. Only Ford Canada responded, reiterating that it does not oppose disclosure under the conditions it initially laid out.

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

[6]        Paragraph 20(1)(c) requires institutions to refuse to disclose 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.

[7]        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.

[8]        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.

[9]      However, subsections 20(2) and 20(4) specifically prohibit institutions from using paragraph 20(1)(c) to refuse to disclose 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?

[10]      Transport Canada initially indicated to the complainant that it was withholding the records pursuant to subsection 20(4). Transport Canada later issued a correction to the complainant, indicating that it was applying paragraph 20(1)(c) to the records.

[11]      The complainant asserted that the information at issue cannot be withheld under paragraph 20(1)(c), as subsection 20(4) prohibits institutions from using paragraph 20(1)(c) to refuse to disclose information that contains the results of product testing carried out on behalf of a government. Transport Canada has explained that the testing in question was preliminary testing, used for research into developing new test methods. As per subsection 20(4), such preliminary testing can be subject to exemption, if the requirements for exemption are met.

[12]      Transport Canada fully withheld the relevant crash test data and videos pursuant to paragraph 20(1)(c), however, it did not identify any harm that could result from disclosure of this information, other than through possible misunderstanding. More specifically, Transport Canada stated its concern was that:

  • Since the car seats were being improperly used in these tests, disclosure could give the false impression the products do not function as they should;
  • The public may draw a false conclusion that improper use of car seats in this way is acceptable.

[13]      Paragraph 20(1)(c) requires evidence showing the financial impact disclosing the information could have on a third party or the harm that could be caused to its competitive position, and how likely that impact would be. The parties must demonstrate a clear and direct connection between the disclosure of specific information and a risk of harm well beyond the merely possible (see: Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras. 197, 206).

[14]      The Supreme Court has held that decision makers should be sceptical about claims that the public misunderstanding of disclosed information will inflict harm on third parties, and that refusing to disclose information for this reason would undermine the purpose of access to information legislation (see: Merck at para. 224).

[15]      Additionally, Transport Canada proposed including an explanatory note with the disclosure. The proposed wording was shared with the third parties. The courts have consistently found that such notes can minimize the risk of misinterpretation of records leading to harm (see: Burnbrae Farms Ltd v Canada (Canadian Food Inspection Agency), 2014 FC 957 at paras 112-113; Les Viandes du Breton Inc v Canada (Department of Agriculture) (2000), 198 FTR 233 at para 18-19).

[16]      Ford Canada suggested alternative wording for an explanatory note. The proposed wording was as follows:

These videos and documents contain footage of, and data collected from, tests conducted as part of Transport Canada’s crashworthiness research programmes. The tests were conducted to investigate the responses of the test measurement tools and equipment, not the vehicles.

Specifically, the testing is designed to investigate the capabilities and limitations of the crash test dummies, describe how product design features/characteristics influence dummy responses, and help develop good test methodologies. In some programmes, the methods are intentionally selected to test beyond the limits of the protocols prescribed by regulations, or to elicit a specific response.

The videos and data should not be used or relied upon for any other purpose.

[17]      Ford Canada indicated that it does not oppose disclosure of the information if an adequate explanatory note is included. Ford Canada indicated that such an explanatory note should be visible for the duration of the videos. None of the other third parties proposed any suggestions for an explanatory note.

[18]      In its final representations, Transport Canada indicated that it no longer feels that the requirements of paragraph 20(1)(c) or any other exemption are met. Transport Canada confirmed that it intends to use Ford Canada’s proposed wording for an explanatory note.

[19]      I conclude that the information does not meet the requirements of paragraph 20(1)(c).

Outcome

[20]      The complaint is well founded.

Order

I order the Minister of Transport to fully disclose the records and include an explanatory note with the disclosure.

Initial report and notice from institution

On March 20, 2025, I issued my initial report to the Minister of Transport setting out my order.

On March 26, 2025, Transport Canada’s Manager, Access to Information and Privacy gave me notice that Transport Canada would be implementing the order.

Review by Federal Court

When an allegation in a complaint falls under paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant has the right to apply to the Federal Court for a review. When the Information Commissioner makes an order(s), the institution also has the right to apply for a review. The complainant and/or institution must apply for a 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. Whoever applies for a review must serve a copy of the application for review to the relevant parties, as per section 43. If no one applies for a review by these deadlines, the order(s) takes effect on the 46th business day after the date of this report.

Other recipients of final report

As required by subsection 37(2), this report was provided to Ford Canada.

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