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International Trade - Export Development Act (EDA). Export Development Canada v. Canada (Information Commissioner)
In Export Development Canada v. Canada (Information Commissioner) (Fed CA, 2025) the Federal Court of Appeal allows an appeal, here from the Federal Court's upholding of "an order of the Information Commissioner of Canada (Commissioner) requiring EDC to disclose customer-related information to the requestor". The court considers ATIA s.18.1 ['Economic interests of certain government institutions'], and ATIA s.24 ['Statutory prohibitions against disclosure'] - the latter of which in turn relies upon s.24.3 ['Privileged information'] of the Export Development Act.
Here the court summarizes aspects of the ATIA's application to Export Development Canada (EDC):III. Legislative scheme
[11] When several crown corporations were made subject to the ATIA for the first time in 2006, it was recognized that some of them were not adequately protected by the ATIA’s existing exemptions. New exemptions were required to meet their specific needs. With respect to EDC, it was given protection by the two exemptions central to this appeal – sections 24 and 18.1 of the ATIA.
[12] Before discussing these provisions, it is useful to canvass some pre-existing exemptions in the ATIA which may also apply to EDC’s customer-related information. This is notable since, despite the existence of these other exemptions, Parliament determined that EDC needed further protections.
[13] One of the pre-existing exemptions, paragraph 20(1)(b) of the ATIA, is in the form of a prohibition on disclosure. The information it applies to (and applied to at the relevant time) is:financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party. [14] Another provision is section 18, which contains discretionary exemptions that only apply if the disclosure of information would be harmful to Canada. The objective of section 18, which is to protect the economic interests of Canada, is achieved by way of specific harms-based tests. Two paragraphs, 18(a) and (b), protect some information that also may be covered by the exemptions in sections 24 and 18.1.
[15] The information protected by paragraphs 18(a) and (b) is described below. The description is based on the current version of the legislation, which does not differ materially from the version in force at the relevant time. The information that is exempt under paragraphs 18(a) and (b) is:"trade secrets or financial, commercial, scientific or technical information that belongs to the Government of Canada or a government institution and has substantial value or is reasonably likely to have substantial value; and"
"information the disclosure of which could reasonably be expected to prejudice the competitive position of a government institution or to interfere with contractual or other negotiations of a government institution." [16] As mentioned, in 2006 Parliament added two new exemptions which gave EDC greater protection. Customer-related information, and other sensitive information, is protected to some degree by existing sections 20 and 18, but the new provisions enhance the protection.
[17] The first new provision is the section 24.3 exemption, which involves an interplay between section 24 of the ATIA and section 24.3 of the EDA. Section 24 of the ATIA prohibits the disclosure of information where such disclosure is restricted by provisions in other statutes listed in Schedule II of the ATIA. In effect, section 24 is an override provision so that statutory prohibitions in other statutes listed in Schedule II take precedence over the ATIA. Section 24.3 of the EDA is one of these statutory provisions. It prohibits EDC from disclosing, without consent:all information obtained by [EDC] in relation to its customers. [18] The second new provision is section 18.1 of the ATIA, which provides a discretionary exemption for the following information:trade secrets or financial, commercial, scientific or technical information that belongs to, and has consistently been treated as confidential by,
(a) the Canada Post Corporation;
(b) Export Development Canada;
(c) the Public Sector Pension Investment Board; or
(d) VIA Rail Canada Inc. . Export Development Canada v. Canada (Information Commissioner)
In Export Development Canada v. Canada (Information Commissioner) (Fed CA, 2025) the Federal Court of Appeal allows an appeal, here from the Federal Court's upholding of "an order of the Information Commissioner of Canada (Commissioner) requiring EDC to disclose customer-related information to the requestor". The court considers ATIA s.18.1 ['Economic interests of certain government institutions'], and ATIA s.24 ['Statutory prohibitions against disclosure'] - the latter of which in turn relies upon s.24.3 ['Privileged information'] of the Export Development Act (EDA).
At paras 34-84 the court considers the statutory interpretation of the phrase "obtained by" as used in EDA s.24.3.
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