Transport Canada (Re), 2025 OIC 62

Date: 2025-12-05
OIC file number: 5824-03323
Access request number: A-2024-00447 / EP

Summary

The complainant alleged that Transport Canada improperly withheld information under paragraph 16(1)(c) (conduct of investigations), subsection 19(1) (personal information), paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information), paragraph 20(1)(d) (negotiations by a third party); and paragraph 21(1)(b) (accounts of consultations or deliberations) of the Access to Information Act in response to an access request. The allegation falls under paragraph 30(1)(a) of the Act. The access request was for records related to a collision between a vessel and a seaplane in Vancouver, British Columbia on June 8, 2024.

Transport Canada could not show that it met all the requirements of these exemptions, apart from a limited amount of information meeting all four requirements of paragraph 20(1)(b). Transport Canada did not provide any information indicating that it had considered its obligation to exercise its discretion under subsection 20(6) to decide whether to disclose the information.

The Information Commissioner ordered that Transport Canada disclose certain information where the parties had not demonstrated that the requirements of the exemptions were met. Transport Canada gave notice to the Commissioner that it would likely be in a position to comply with the order. The complaint is well founded.

Complaint

[1]The complainant alleged that Transport Canada improperly withheld information under the following provisions of the Access to Information Act in response to an access request:

• paragraph 16(1)(c) (conduct of investigations);
• subsection 19(1) (personal information);
• paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information);
• paragraph 20(1)(d) (negotiations by a third party); and
• paragraph 21(1)(b) (accounts of consultations or deliberations).

[2]The allegation falls under paragraph 30(1)(a) of the Act.

[3]The access request was for records related to a collision between a vessel and a seaplane in Vancouver, British Columbia on June 8, 2024.

[4]During the investigation, the complainant decided it was no longer necessary for the Office of the Information Commissioner (OIC) to investigate information withheld under subsection 19(1) and decided it was only necessary to investigate the application of the other exemptions on pages 20, 21, 32, 33, 39 and 45.

Investigation

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

[6]The OIC sought representations from the Harbour Air Ltd. (Harbour Air) pursuant to paragraph 35(2)(c) of the Act.

[7]Harbour Air asserted that the withheld information should not be released.

[8]During the investigation, Transport Canada decided to no longer rely on paragraphs 16(1)(c) and 21(1)(b) to withhold information on pages 20, 21, 32, 33 and 45. Although this information has not been released by Transport Canada, Transport Canada did not make any representations to justify the application of the exemptions. Therefore, I conclude that the information does not meet the requirements for exemption under paragraphs 16(1)(c) and 21(1)(b) and must be disclosed.

[9]Further, Transport Canada could not support that certain information met the requirements of paragraphs 20(1)(b) and 20(1)(d), however, maintained that some information withheld under paragraph 20(1)(b) meets the requirements of the exemption.

[10]The OIC notified Harbour Air pursuant to subsection 36.3(1) of my intention to order Transport Canada to disclose the information at issue. Harbour Air did not respond to the notice.

Paragraph 20(1)(b): confidential third-party financial, commercial, scientific or technical information

[11]Paragraph 20(1)(b) requires institutions to refuse to disclose confidential financial, commercial, scientific or technical information provided to a government institution by a third party (that is, a private company or individual, but not the person who made the access request).

[12]To claim this exemption, institutions must show the following:

• The information is financial, commercial, scientific or technical.
• The information is confidential.
• The third party supplied the information to a government institution.
• The third party has consistently treated the information as confidential.

[13]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 disclose the information.

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

[15]However, subsections 20(2) and 20(4) specifically prohibit institutions from using paragraph 20(1)(b) 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?

[16]Transport Canada initially applied paragraph 20(1)(b) concurrently with paragraph 20(1)(d) to partially withhold information on page 39.

Was the information financial, commercial, scientific and/or technical?

[17]In the decision Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3 (Merck), the Supreme Court of Canada stated that that the terms “financial, commercial, scientific or technical” should be given their ordinary dictionary meanings. According to dictionary definitions, the word “commercial” means “concerned with or engaged in commerce”, “making or intended to make a profit.”

[18]I accept that the number of passengers being transported on the day of the accident is commercial information.

[19]Harbour Air asserted that much of the withheld information qualifies as technical information, given that the information was provided by an aviation professional and it describes the technical aspects of commercial flight operations and aviation accident emergency response.

[20]In the decision Halifax Regional Municipality (Re), 2016 NSOIPC 9, technical information was defined as information belonging to an organized field of knowledge. Furthermore, in the decision Saskatchewan (Environment) (Re), 2023 CanLII 40779 (SK IPC)”, it was described as information relating to a particular subject, craft or technique, usually prepared by a professional in the field to describe the construction, operation or maintenance of a structure, process, equipment or thing. I disagree with Harbour Air that all of the withheld information falls within this definition, however, I accept that the following information is technical:

• The withheld information in the third bullet; and
• A portion of the third line of the last bullet.

[21]Transport Canada agreed that only the information described above is technical and/or commercial information.

[22]I conclude that only a limited amount of information meets the first requirement of paragraph 20(1)(b), as described above.

Was the information confidential?

[23]In order for paragraph 20(1)(b) to apply, the information must be objectively confidential. In Air Atonabee Ltd. v. Canada (Minister of Transport), 1989 CanLII 10334 (FC) (Air Atonabee), the Federal Court outlined three specific sub-criteria, each of which must be met, for the information to be considered confidential:

• the information is not otherwise available from public sources;
• the information originates and is communicated with a reasonable expectation of confidence that it will not be disclosed; and
• the relationship between the government and third party is not contrary to the public interest and will be fostered for public benefit by keeping the information confidential.

Was the information publicly available?

[24]I find that the information is not accessible by the public.

[25]I conclude that that the information in question meets the first condition for confidentiality.

Was the information communicated with a reasonable expectation of confidentiality?

[26]Regarding the second condition for confidentiality, for information to be confidential by an objective standard, there must also be a reasonable expectation of confidence that the information will not be disclosed. Whether or not that reasonable expectation of confidence exists will depend on the facts, including the substance and purpose of the information and how it came to be under the government institution’s control.

[27]Harbour Air explained that it had provided records and communications on a confidential basis to Transport Canada, who is in a position of authority, during the stressful aftermath of an accident, with a reasonable expectation that it would not be disclosed.

[28]Based on Transport Canada’s representations, I conclude that Harbour Air had a reasonable expectation that the information would be held in confidence by Transport Canada, considering that the information was, at the time, subject to a Transportation Safety Board of Canada investigation and possible litigation, in addition to the fact that Harbour Air had already expressed its concerns about sharing of information during its phone call with Transport Canada.

[29]I conclude that Harbour Air had a reasonable expectation that the information would be held in confidence by Transport Canada.

Was the relationship fostered for public benefit by maintaining confidentiality?

[30]Regarding the third condition for confidentiality, I am satisfied that the information was communicated within the context of a relationship between the third party and Transport Canada that would be fostered for public benefit by the communication’s confidentiality. In Air Atonabee, the Federal Court found that the third party would be encouraged to be open and frank with inspectors if its understanding about the restricted purposes and circulation of its communications is recognized and respected.

[31]I conclude that the information at issue meets the third condition for confidentiality.

Was the information supplied by a third party to a government institution?

[32]Transport Canada did not make any representations to the OIC on this point, beyond simply indicating that the information was supplied by Harbour Air during a telephone conversation with Transport Canada. The parties did not establish that information such as the first phrase in the last bullet is information supplied by Harbour Air.

[33]Therefore, based on the lack of representation provided during the investigation, I conclude that most of the information was supplied by the third party, but certain information within the records withheld under paragraph 20(1)(b) which was created by Transport Canada does not meet the third requirement of the exemption.

Has the third party consistently treated the information as confidential?

[34]As for the final requirement, I accept that the information at issue was consistently treated as confidential by Harbour Air, so as to satisfy this requirement.

[35]In light of all of my analysis above, I conclude that only the following information meets the requirements of paragraph 20(1)(b):

• The withheld information in the third bullet;
• A portion of the third line of the last bullet; and
• The number of passengers.

Did the institution reasonably exercise its discretion to decide whether to disclose the information?

[36]Since some information on page 39 meets the requirements of paragraph 20(1)(b), Transport Canada was required to reasonably exercise its discretion to decide whether to disclose the information for public health or public safety reasons, or to protect the environment, when the two circumstances described in subsection 20(6) existed when it responded to the access request.

[37]Subsection 20(6) requires that the head of the institution (1) determine whether the record is related to public health, public safety or protection of the environment, and if yes, then (2) determine whether disclosure may be in the public interest by weighing the merits of the arguments both for and against disclosure in the public interest. The public interest must “clearly outweigh” in importance the prejudice or harm to third parties.

[38]Transport Canada listed a number of factors in favour of protecting the confidentiality of the information, including protecting the department’s credibility with regards to the stakeholders in the transportation industry, which facilitates sharing of information including in cases of accidents, which then allows Transport Canada to ensure monitoring and the safety of transportation.

[39]However, Transport Canada did not provide any information to indicate that it had considered whether the second circumstance set out in subsection 20(6) existed when it responded to the access request – specifically, whether disclosure would clearly outweigh 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.

[40]I must conclude that Transport Canada did not show that it had considered whether all circumstances existed, which prevented it from exercising its discretion when appropriate.

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

[41]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.

[42]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.

[43]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.

[44]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 disclose the information.

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

[46]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?

[47]Neither Transport Canada nor Harbour Air raised this exemption, however, Harbour Air made assertions that disclosure could cause harm to it financially and to its competitive position.

[48]Harbour Air did not make any representations to the OIC on this point, beyond simply providing the same information it had previously provided under paragraph 20(1)(d).

[49]Harbour Air indicated that disclosure of its conjecture regarding the cause of the accident could be damaging. Harbour Air explained that the harm could result from misinterpreting the information.

[50]I note that the courts have been skeptical of arguments relating to public misunderstanding, because it could undermine the fundamental purpose of access to information legislation – which is to give the public access to information so that the public may evaluate the information, and not to protect the public from the information (see: Merck at para 224).

[51]As far as harm to Harbour Air’s reputation, Harbour Air’s argument is speculative, without any supporting evidence.

[52]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 at paras 197, 206).

[53]No explanation has been offered as to how disclosure could reasonably be expected to result in either a material financial loss to Harbour Air or gain to another third party, or injury to Harbour Air’s competitive position. Therefore, Harbour Air has not demonstrated a clear and direct connection between disclosure of the information at issue, and a risk of harm within the meaning of paragraph 20(1)(c) that is well beyond the merely possible or speculative.

[54]During the investigation, Transport Canada indicated that it could not justify applying paragraph 20(1)(c).

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

Paragraph 20(1)(d): negotiations by a third party

[56]Paragraph 20(1)(d) requires institutions to refuse to disclose information that, if disclosed, could reasonably be expected to interfere with the contractual or other negotiations of a third party (that is, a private company or individual, but not the person who made the access request).

[57]To claim this exemption, institutions must show the following:

• A third party is or will be conducting contractual or other negotiations.
• Disclosing the information could interfere with those negotiations.
• There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[58]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 disclose the information.

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

Does the information meet the requirements of the exemption?

[60]Transport Canada initially applied paragraph 20(1)(d) concurrently with paragraph 20(1)(b) to partially withhold information on page 39. During the investigation, Transport Canada indicated that it could not justify the application of paragraph 20(1)(d) to maintain the application of the exemption.

[61]Harbour Air maintained that the withheld information meets the requirements of paragraph 20(1)(d) by identifying potential harms from disclosure of the records. However, it did not provide sufficient representations to justify the application of the exemption nor did it show proof of a reasonable expectation of such harms.

[62]Without any evidence of a reasonable expectation that actual contractual negotiations could be obstructed by disclosure, I conclude that the information does not meet the requirements of paragraph 20(1)(d).

Outcome

[63]The complaint is well founded.

Orders and recommendations

I order the Minister of Transport to the following:

1. Disclose the information that Transport Canada is no longer relying on paragraphs 16(1)(c) and 21(1)(b) to withhold on pages 20, 21, 32, 33 and 45, since it did not support this information meets the requirements for any exemption;
2. Disclose the information or portions of the information which I have found not to meet the requirements of paragraphs 20(1)(b) and 20(1)(d) on page 39, as described in my analysis, other than the information withheld under subsection 19(1); and
3. For information that meets the requirements of paragraph 20(1)(b), determine whether the circumstance described in subsection 20(6) exists by considering whether 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 and; if that is the case, reasonably exercise discretion to decide whether to release the third-party information for public health or public safety reasons, or to protect the environment.

Initial report and notice from institution

On October 29, 2025, I issued my initial report to the Minister of Transport setting out my order.

On November 28, 2025, the Manager of the Access to Information and Privacy division gave me notice that Transport Canada would likely be in a position to comply with my order.

I remind the Minister that, if he does not intend to fully implement my order, he must apply to the Federal Court for a review by the deadline set out below.

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 Harbour Air.