Transport Canada (Re), 2026 OIC 61

Date: 2026-09-08
OIC file number: 5823-02826
Access request number: A-2022-00425 / LN

Summary

The complainant alleged that Transport Canada had improperly withheld information under subsection 19(1) (personal information), paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information), paragraph 20(1)(c) (financial impact on a third party) and paragraph 21(1)(c) (positions or plans developed for negotiations) of the Access to Information Act. This was in response to an access request for reports submitted to Transport Canada from June to December 2022 regarding new environmental measures for cruise ships. The allegation falls under paragraph 30(1)(a) of the Act.

Transport Canada could not show that it met all the requirements of these exemptions, apart from technical details meeting all four requirements of paragraph 20(1)(b) and personal information. Transport Canada did not demonstrate that it had considered all relevant factors in determining whether its discretion was triggered under subsection 20(6).

The Information Commissioner ordered that Transport Canada disclose certain information and to determine whether the circumstance described in subsection 20(6) exists. 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 had improperly withheld information under subsection 19(1) (personal information), paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information), paragraph 20(1)(c) (financial impact on a third party) and paragraph 21(1)(c) (positions or plans developed for negotiations) of the Access to Information Act. This was in response to an access request for reports submitted to Transport Canada from June to December 2022 regarding new environmental measures for cruise ships. The allegation falls under paragraph 30(1)(a) of the Act.

[2]During the investigation, the complainant decided it was no longer necessary for the Office of the Information Commissioner (OIC) to investigate the withholding of certain personal information, specifically the names, contact information and signatures of individuals.

Investigation

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

[4]During the investigation, Transport Canada decided to no longer rely on paragraph 21(1)(c) to withhold information.

[5]On March 27, 2026, Transport Canada disclosed additional information, including report dates, third party names, business contact information, template elements and general ship information (names, identification numbers, ports visited), which it had withheld under subsection 19(1), paragraph 20(1)(b), paragraph 20(1)(c) and paragraph 21(1)(c) when it responded to the access request. Transport Canada continued to withhold the remaining information under subsection 19(1) and paragraph 20(1)(b).

Subsection 19(1): personal information

[6]Subsection 19(1) requires institutions to refuse to disclose personal information.

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

The information is about an individual—that is, a human being, not a corporation.
There is a serious possibility that disclosing the information would identify that individual.
The information does not fall under one of the exceptions to the definition of “personal information” set out in paragraphs 3(j) to 3(m) of the Privacy Act (for example, business contact information for public servants).

[8]When these requirements are met, institutions must then consider whether the following circumstances (listed in subsection 19(2)) exist:

The person to whom the information relates consents to its disclosure.
The information is publicly available.
Disclosure of the information would be consistent with section 8 of the Privacy Act.

[9]When one or more of these circumstances exist, subsection 19(2) of the Access to Information Act requires institutions to reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[10]Most of the information withheld under subsection 19(1) in the response is excluded from the scope of the complaint (names, contact information and signatures of individuals).

[11]Where job titles and email addresses linked to specific job titles were withheld, the OIC is satisfied that disclosure poses a serious risk of identification of the individual, which would reveal their personal information. This information does not fall within any of the exceptions to the definition of personal information. In cases where the withheld information did not relate to any identifiable individual, Transport Canada has now released it.

[12]I conclude that the information that remains withheld meets the requirements of subsection 19(1).

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

[13]Since the information meets the requirements of subsection 19(1), Transport Canada was required to reasonably exercise its discretion under subsection 19(2) to decide whether to disclose the information when one or more of the circumstances described in subsection 19(2) existed when it responded to the access request.

[14]Transport Canada made detailed representations supporting that:

Seeking consent from the individuals would not have been reasonable in this case
The information that remains withheld is not public
Disclosure would not be in accordance with section 8 of the Privacy Act

[15]I conclude that the circumstances set out in subsection 19(2) did not exist when Transport Canada responded to the access request. There is no need to examine the issue of discretion.

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

[16]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).

[17]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.

[18]When these 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?

[19]Transport Canada withheld portions of the environmental measure compliance reports submitted by the third parties pursuant to paragraph 20(1)(b).

[20]The OIC sought representations from the following third parties:

American Queen Voyages
Carnival Corporation & PLC (Carnival)
CMI Ship Management, acquired by Anglo-Eastern Cruise Management Inc. (Anglo-Eastern)
Conti Columbus
Disney Cruise Line
Hurtigruten Expeditions, now HX Expeditions
Lindblad Expeditions
Norwegian Cruise Line (on behalf of itself and its subsidiaries: NCL (Bahamas) Ltd, Navigator Vessel Company, Oceania Cruises, Seven Seas Cruises - collectively NCL)
Pearl Seas Cruises
Ponant
Quark Expeditions, Inc.
Royal Caribbean Group (RCCL)
Viking Cruises
Windstar Cruises Marshall Islands, LLC (Windstar Cruises)

[21]The OIC made reasonable efforts to locate MS Amadea but was unable to locate it.

[22]Notice was also sent to these third parties pursuant to section 36.3. Representations were received from Anglo-Eastern, Carnival, HX Expeditions, Lindblad Expeditions, NCL, Pearl Seas Cruises, RCCL, Viking Cruises and Windstar Cruises.

[23]With respect to the first requirement of paragraph 20(1)(b), that the information be financial, commercial, scientific or technical”, the Supreme Court of Canada in Merck Frosst v. Canada (Minister of Health), 2012 SCC 3 (Merck) stated at paragraph 139 that these terms “should be given their ordinary dictionary meanings.”

[24]Detailed accounts of water being discharged are found on certain pages related to Carnival (page 235), HX Expeditions (page 227), MS Amadea (pages 131, 184), NCL (pages 135-136, 306-307), Pearl Seas Cruises (pages 52-54, 188, 377, 390) and RCCL (page 316-372). This information goes beyond whether the treatment method complied with the new environmental measures, providing exact location of discharge, vessel speed, time of discharge, volume of discharge, reasons for discharge, ships logs. I find these details fall within the meaning of technical information and that this information meets the first requirement of the exemption.

[25]I am not convinced, however, that the following high-level information meets this first requirement of paragraph 20(1)(b), as it has no commercial purpose and requires no technical knowledge to understand:

that a ship did or did not discharge anything in Canadian waters;
statements that the ship was in compliance with current regulatory requirements; and
that a ship simply was or was not in compliance with the new measures.

[26]Neither Transport Canada nor any of the third parties sufficiently addressed how this information meets this first requirement. Therefore, I conclude that this first requirement is not met for this information.

[27]With respect to the second requirement, that the information is objectively confidential, the information must be assessed against three conditions:

The information must not be available from sources otherwise accessible by the public.
It must originate and be communicated with a reasonable expectation that it will not be disclosed.
It must be communicated, whether required by law or otherwise, in a relationship between government and the party supplying it that is either a fiduciary relationship or one that is not contrary to the public interest. This relationship must be fostered for public benefit by the confidential communication. (see: Air Atonabee Ltd. v. Canada (Minister of Transport), 1989 CanLII 10334 (FC)).

[28]Some of the originally withheld information was publicly available. Transport Canada disclosed that information in its supplementary release, so it is no longer at issue.

[29]Regarding the second part of the confidentiality test, several of the third parties indicated that Transport Canada gave them assurances that the reports would be treated as confidential. Such assurances are not sufficient, on their own, to support that the reports were submitted with a reasonable expectation that they would not be disclosed. As the courts have repeatedly stated, it is not possible to contract out of the Act (see: Brookfield Lepage Johnson Controls Facility Management Services v. Canada (Minister of Public Works and Government Services), 2003 FCT 254 at para 16). Rather, such a determination requires an examination of all the facts, including the substance and purpose of the information and how it came to be under the institution’s control.

[30]On April 4, 2022, Transport Canada issued an announcement regarding the new environmental measures for cruise ships ( New environmental measures for cruise ships) indicating it would make reports public. Transport Canada asserted that this announcement only signalled its intent to make summary compliance information public, which is supported by several of the third parties indicating they had understood only aggregated data would be made public.

[31]The withheld technical information was provided to Transport Canada in the context of reporting on voluntary measures. The courts have consistently found that, in cases when third parties are assisting government or where obtaining more detailed information from third parties is in the public interest, third parties reasonably have a higher expectation of confidentiality (see: AstraZeneca Canada Inc. v. Health Canada, 2005 FC 1451 at para 82).

[32]In light of the above, I accept that the third parties had a reasonable expectation of confidentiality with respect to the information they were asked to submit in voluntary compliance reports.

[33]I have no reason to believe that the relationship between the third parties and Transport Canada is contrary to the public interest, nor do I question that this relationship is fostered for the public benefit by confidential communication of information meeting all other requirements of the exemption.

[34]Consequently, I find that the second requirement of paragraph 20(1)(b) is only met for detailed technical information provided by the third parties in support of their reports, including ships logs, coordinates, volumes and the specific technical capabilities of the ship.

[35]Turning to the third requirement of paragraph 20(1)(b), I accept that most of the withheld information was supplied to Transport Canada.

[36]Comments on pages 89 and 305, however, clearly originate from Transport Canada and do not seem to reveal the information supplied by the third parties. I am not convinced that this information meets the third requirement of the exemption and Transport Canada did not claim any additional exemptions with respect to this information, nor did it fully release it.

[37]Finally, turning to the last requirement of paragraph 20(1)(b), while I accept that Carnival, HX Expeditions, NCL, Pearl Seas Cruises and RCCL consistently treated their information as confidential, no evidence was presented upon which I can conclude that the other third parties consistently treated the withheld information as confidential.

[38]I conclude that the information does not meet the requirements of paragraph 20(1)(b), apart from technical details provided by Carnival, HX Expeditions, NCL, Pearl Seas Cruises and RCCL (exact coordinates of discharge, vessel speed, time of discharge, volume of discharge, reasons for discharge, ships logs), as found on pages 52-54, 135-136, 188, 227, 235, 306-307, 318-372, 377 and 390.

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

[39]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.

[40]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.

[41]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.

[42]When these 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?

[43]Transport Canada originally applied paragraph 20(1)(c) concurrently with paragraph 20(1)(b) in all cases to withhold the information at issue but ceased reliance on this exemption in its supplementary release. As a result, Transport Canada provided no representations in support of paragraph 20(1)(c), however, I have considered whether the requirements of the exemption are met, since certain third parties asserted that their information warrants protection under paragraph 20(1)(c).

[44]Paragraph 20(1)(c) requires evidence showing the financial impact disclosing the information could have on a third party or the harm that disclosure could cause 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, paras. 197, 206).

[45]Even though some of the third parties made general representations related to harm, for the most part, it remains unclear what harm could result from disclosure of the information at issue, how likely that harm would be, and how there is a direct connection between disclosure and such harm.

[46]One third party made more detailed representations as to the harm that could result from disclosure, however, its representations focus on the technical information supplied by the third party. Since I accept such information meets the requirements of paragraph 20(1)(b), it is unclear how the other information in the reports, if disclosed, could cause the types of harm identified by the third parties.

[47]I also note that several third parties asserted that public misunderstanding of the information could result in harm under paragraph 20(1)(c). 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). I am not convinced that any information meets the requirements of paragraph 20(1)(c) on the basis of public misunderstanding.

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

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

[49]Since some of the information 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.

[50]The information remaining at issue would seem to clearly relate to matters of public health and protection of the environment.

[51]Transport Canada made detailed representations on subsection 20(6), indicating that it considered whether these circumstances existed and found that the public interest is primarily served by the high-level compliance information, rather than the information I have found qualifies for exemption. Transport Canada indicated that the public interest in disclosure of the exempt information did not clearly outweigh the potential harm to the third parties.

[52]As I have laid out above, I am not convinced by the parties’ representations regarding there being a reasonable expectation of harm to the third parties. Moreover, it seems likely that the exact location of discharge and the volume of discharge could be of particular public interest, as large amounts of discharge in specific areas may pose a serious risk to public health and the environment.

[53]I conclude that Transport Canada has not demonstrated that it considered all relevant factors when it considered whether the circumstances set out in subsection 20(6) existed when it responded to the access request. I must conclude that Transport Canada did not show that it had determined whether those circumstances existed, which prevented it from exercising its discretion when appropriate.

Outcome

[54]The complaint is well founded.

Orders and recommendations

I order the Minister of Transport to do the following:

Disclose the records in full, apart from the information withheld under subsection 19(1) and the detailed technical information that went beyond what was required to be reported, found on pages 52-54, 135-136, 188, 227, 235, 306-307, 318-363, 365-372, 377 and 390; and
Determine whether the circumstance described in subsection 20(6) exists by reconsidering the public interest and, if Transport Canada finds the public interest to outweigh the potential harm to a third parties, reasonably re-exercise discretion to decide whether to release certain third-party information.

Initial report and notice from institution

On July 29, 2026, I issued my initial report to the Minister of Transport setting out my orders.

On August 28, 2026, Transport Canada’s Acting Manager, Access to Information and Privacy gave me notice that Transport Canada would likely be in a position to implement the orders.

I remind the Minister that, if he does not intend to fully implement my orders, 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 Anglo-Eastern, Carnival, HX Expeditions, Lindblad Expeditions, NCL, Pearl Seas Cruises, RCCL, Viking Cruises and Windstar Cruises.