Executive Summary: Key Legal and Evidentiary Issues

• Scope and application of paragraph 18(b) of the Access to Information Act (ATIA) to CBC’s aggregate annual advertising expenditures for 2020–2023.
• Whether CBC’s evidence, primarily via the Kane affidavit, established a “reasonable expectation of probable harm” to its competitive position and contractual negotiations if the records were fully disclosed.
• Assessment of the sufficiency, specificity, and credibility of expert-type evidence versus allegedly speculative assertions regarding competitive harm and use of “monitors” in the media buying market.
• Determination of whether the partial refusal to disclose advertising expenditure violated section 2(b) of the Charter, including the threshold for a constitutionally protected right of access to government-held information.
• Consideration of whether access to CBC’s aggregate advertising expenditure is necessary for meaningful public debate on CBC’s use of public funds and whether non-disclosure impedes such discourse.
• Balancing of transparency and accountability objectives under section 2 of the ATIA against economic-interest exemptions and institutional functioning where CBC operates in a competitive media and advertising market.

Factual background and the access request

The case arises out of an access to information dispute between the Canadian Taxpayers Federation (CTF) and investigative journalist Ryan Thorpe, on one side, and the Canadian Broadcasting Corporation (CBC), on the other. CTF is a not-for-profit organization focused on efficient use of taxpayer dollars and government accountability, and Thorpe was an investigative journalist for CTF at the relevant time. In June 2022, CBC published its 2021–2022 annual report, which disclosed information about its activities and use of public resources as a federal institution. Motivated by their longstanding scrutiny of CBC’s use of public funds, the applicants sought more granular information specific to advertising. On January 26, 2024, they submitted an access to information request under the Access to Information Act (ATIA), seeking CBC’s aggregate annual advertising expenditures for the calendar years 2020, 2021, 2022 and 2023. These figures—referred to in the judgment as the “Requested Records”—were high-level annual totals, not line-by-line contracts or vendor-specific spending.

CBC’s refusal and complaint to the Information Commissioner

On March 15, 2024, CBC issued a decision granting partial access but withholding portions of the Requested Records under paragraph 18(b) of the ATIA. CBC took the position that full disclosure of its aggregate annual advertising expenditure could reasonably be expected to prejudice its competitive position and interfere with its contractual and other negotiations in the highly competitive television and online advertising environment. Dissatisfied, the applicants filed a complaint with the Office of the Information Commissioner of Canada (OIC) on March 18, 2024. They argued that paragraph 18(b) should be applied strictly and with a higher threshold when the institution is publicly funded, contending that CBC had not made out concrete harm and that annual totals were too general to cause competitive damage. CBC, in its submissions to the OIC, maintained that complete disclosure would allow competitors to use industry tools and “monitors” to build predictive models of CBC’s spending, refine their own strategies, and gain an unfair advantage in future bidding and negotiations. CBC added that disclosure could trigger political pressure on its advertising spend and alter its arm’s-length decision-making, as well as disrupt negotiations related not only to advertising, but also programming agreements and promotional commitments. CBC further emphasized that neither its competitors, nor the CRTC, nor comparable foreign public broadcasters disclose comparable aggregate annual advertising expenditures because of the commercial sensitivity of such information. On January 14, 2025, the OIC issued its report. It concluded that CBC had reasonably exercised its discretion under paragraph 18(b). The OIC accepted CBC’s explanation of how it assessed harm and the public interest, and found that CBC’s representations showed this kind of information is recognized in the industry as capable of interfering with negotiations or injuring competitive positions.

Judicial review application and issues before the Federal Court

On February 24, 2025, the applicants applied to the Federal Court for a review under section 41(1) of the ATIA. They challenged both CBC’s reliance on paragraph 18(b) and the constitutionality of the refusal under section 2(b) of the Canadian Charter of Rights and Freedoms. Because an application under sections 41(1) and 44.1 of the ATIA proceeds on a de novo basis, the Court conducted its own independent assessment of the facts, evidence, and law. Two core issues were framed: whether CBC properly applied paragraph 18(b) when deciding to withhold parts of the Requested Records, and whether CBC’s refusal breached the applicants’ freedom of expression and of the press under section 2(b) of the Charter. The burden of proof under section 48(1) of the ATIA rested on CBC, as the party seeking to justify the exemption. CBC was required to demonstrate, on a balance of probabilities, that disclosure of the withheld information could reasonably be expected to prejudice its competitive position or interfere with its contractual or other negotiations.

The statutory framework and the harms-based test under paragraph 18(b)

The Court located the dispute within the broader purpose of the ATIA as articulated in section 2: to enhance transparency and accountability of federal institutions, promote an open and democratic society, and enable public debate on their conduct. At the same time, the ATIA contains specific, limited exemptions to protect legitimate governmental and economic interests. Paragraph 18(b) creates a discretionary exemption allowing the head of a government institution to refuse disclosure where information “could reasonably be expected to prejudice the competitive position” of the institution or “interfere with contractual or other negotiations.” The Court treated this as a classic harm-based, economic-interest exemption. Drawing heavily on Supreme Court of Canada authority—particularly Merck Frosst Canada Ltd. v Canada (Health) and Ontario (Community Safety and Correctional Services) v Ontario (Information and Privacy Commissioner)—the judge reaffirmed that the applicable standard is a “reasonable expectation of probable harm.” The institution need not show on a balance of probabilities that harm will in fact occur, but must demonstrate more than a mere possibility of harm. Evidence must show a risk of harm that is “well beyond the merely possible or speculative” and must establish a direct link between disclosure and the alleged harm, rather than a vague or generalized concern about competitive disadvantage or tougher business conditions. In applying paragraph 18(b), the Court analogized to case law on section 20 of the ATIA, given the similar structure and language of those provisions when dealing with third-party commercial information.

Applicants’ challenge to CBC’s evidence and the Kane affidavit

The applicants’ central attack on CBC’s reliance on paragraph 18(b) focused on the evidentiary weight and sufficiency of the affidavit by Ms. Kane, CBC’s Executive Director of Marketing and Communications, who has 25 years’ experience in marketing and strategic communications in the media sector. They argued that her evidence was speculative and unsupported by concrete data, and that she lacked direct operational insight because media buying, placement, pricing, and platform strategy are handled largely by an external agency. In their view, her affidavit amounted to general predictions about possible competitive responses, rather than detailed, factual proof of likely harm. They emphasized several aspects of her cross-examination. Ms. Kane acknowledged that she did not know precisely how competitors would spend on advertising if CBC’s aggregate expenditures were disclosed and conceded that competitors might not “easily” outspend CBC. The applicants also noted that CBC had not provided evidence that rights-holders or sponsors actually rely on aggregate advertising budgets in setting prices or negotiating promotional requirements, nor had CBC quantified how disclosure would impair future negotiations. Relying on cases such as Brainhunter, Canada Post, and American Iron & Metal, they submitted that evidence supporting a harm-based exemption must show a specific, clear, and direct linkage between the information and the alleged harm. In their view, CBC’s theory of harm required an impermissible “leap of faith”: that competitors use monitoring tools, that these tools could be effectively combined with annual totals, that competitors would adjust strategies accordingly, and that this chain would culminate in material prejudice to CBC.

CBC’s evidentiary theory of competitive and contractual harm

CBC defended Ms. Kane’s evidence as detailed, grounded in her long experience, and sufficient to meet the “reasonable expectation of probable harm” standard. CBC stressed that, although it receives a very large annual parliamentary appropriation, roughly one-third of its revenues come from advertising sales. Advertising rates depend on audience size and engagement, which in turn are heavily influenced by marketing investment in high-profile programming and campaigns. In a market where viewers can watch only one outlet at a time, CBC is in active competition with both domestic and foreign private broadcasters and platforms. Ms. Kane explained that if CBC’s aggregate annual advertising expenditure were disclosed, competitors could combine that information with commercially available “monitors” that track when and where ads run, then reverse-engineer CBC’s spend on particular campaigns or marquee events, such as the Junos or Olympics. Knowing CBC’s overall annual spend and the proportion devoted to a given event would allow competitors to approximate what CBC invests to promote specific content. Competitors could then reallocate and increase their own budgets in order to outspend CBC on comparable or rival events and campaigns, or to undercut CBC in bidding for marquee rights. In addition, bids for major events often include a specified promotional or advertising commitment. If rights-holders could see CBC’s overall advertising budget, Ms. Kane testified they would likely push for higher promotional spend commitments in tender processes, effectively “squeezing” more value from CBC in future negotiations. That, in turn, could either increase CBC’s costs or diminish its ability to compete successfully for premium rights. She also emphasized that CBC’s competitors, the CRTC, and similar foreign public broadcasters do not publish information of this type because of its recognized sensitivity in the media advertising marketplace.

The Court’s assessment of evidence and application of paragraph 18(b)

The Federal Court distinguished the present case from American Iron & Metal and similar decisions where affidavits consisted of bare assertions that disclosure “could” harm competitive interests without explaining the mechanism, market context, or specific channels through which harm would occur. Here, the Court found that Ms. Kane’s evidence set out a clear and realistic chain of events: the existence and use of advertising “monitors” to identify where and when campaigns run; the ability to estimate what CBC spends on particular events by combining those data with annual totals; the competitive importance of marquee programming and sponsorships; and the likelihood that both competitors and rights-holders would use this insight to adjust their respective strategies to CBC’s detriment. The Court rejected the criticism that Ms. Kane’s lack of direct operational control over media buying undermined her evidentiary value. As a senior marketing strategist with decades of experience, she was well placed to understand how knowledge of a competitor’s advertising budget influences market behaviour. The Court accepted, as both logical and commercially realistic, that in a highly competitive media environment, competitors will use any credible information and tools available to enhance their own bids and marketing effectiveness. The judge concluded that CBC had shown a “reasonable expectation of probable harm” to both its competitive position and its contractual negotiations. The risk was not mere conjecture: disclosure was reasonably likely to incent competitors to re-tool budgets and bids and rights-holders to demand more promotional spend from CBC in future contracts, creating an “unlevel playing field” for CBC in key markets. On this basis, the Court held that the withheld portions of the Requested Records properly fell within the exemption in paragraph 18(b) and that CBC’s partial redaction and refusal to disclose the full aggregate advertising expenditures were justified.

Charter challenge and the derivative right of access

The applicants also contended that the refusal to disclose the full Requested Records infringed their rights under section 2(b) of the Charter. Relying on the Supreme Court of Canada’s decision in Criminal Lawyers’ Association, they argued that the right of access to government-held information can arise as a derivative aspect of freedom of expression where such access is necessary for meaningful public discussion of a matter of public or political importance. They pointed out that CTF has an established history of commenting on and testifying about CBC’s use of public funds, including advocating for the defunding of CBC, and that CBC receives over one billion dollars in taxpayer funding annually. In their view, CBC’s advertising expenditures are integral to that broader public policy discussion. They asserted that granular figures on aggregate advertising spend would allow more meaningful scrutiny of CBC’s use of public money, without opening the door to disclosure of competitively sensitive contract-level details. On this basis, they submitted that refusing disclosure substantially impeded their ability to engage in informed public debate and therefore violated section 2(b). CBC responded that the applicants had not produced evidence linking these particular numbers—aggregate advertising expenditures for 2020–2023—to a specific, live public controversy or debate such that access to them was an “essential precondition” for meaningful expression. CBC emphasized that its overall public funding levels and broad financial picture are already disclosed in its annual reports and that the applicants could and did use that information in their public commentary and advocacy.

Court’s analysis of the section 2(b) claim

Applying the two-stage test from Criminal Lawyers’ Association, the Court first considered whether access to the Requested Records was necessary for the meaningful exercise of freedom of expression on a matter of public importance. The judge accepted that CBC’s public funding in general is a matter of public interest and that CBC’s annual reports, which are already public, have generated substantial commentary and criticism. However, the Court drew a sharp distinction between CBC’s overall public funding—already in the public domain—and the narrower category of aggregate advertising expenditures captured in the Requested Records, which are merely a subset of the total. The applicants’ evidence consisted primarily of Thorpe’s affidavit stating that government expenditures are matters of public interest and that CBC’s aggregate advertising spending therefore ought to be available. The Court held that this was insufficient to establish that disclosure of the Requested Records was necessary to enable meaningful expression. Thorpe himself acknowledged on cross-examination that he had not previously seen arguments about CBC’s marketing budget used as a basis to advocate defunding and that public discourse on CBC’s marketing spend was essentially absent. The judge concluded there was no evidence that releasing aggregate advertising expenditures would meaningfully add to, or transform, existing debate over CBC’s public funding, nor that current discussion was substantially impeded by the absence of these specific figures. As a result, the applicants failed at the first stage: they did not demonstrate that access to these advertising totals was a precondition for meaningful expression on a matter of public or political importance, and therefore no breach of section 2(b) was established.

Countervailing considerations and institutional functioning

The Court went on to explain that, even if the first stage of the Charter test had been met, the result would not change because of countervailing considerations. Criminal Lawyers’ Association recognizes that the derivative right of access can be limited where disclosure would interfere with the proper functioning of the institution or encroach on protected privileges or other important interests. Here, drawing on its earlier harm analysis under paragraph 18(b), the Court found that full disclosure of CBC’s aggregate annual advertising expenditure could reasonably be expected to prejudice CBC’s competitive position and disrupt its negotiations with rights-holders. Competitors could use the data to refine their strategies and outspend CBC in bids, while rights-holders could press for larger promotional commitments once they saw the overall budget size. For a national public broadcaster operating in a mixed public–private media market, these consequences would impair CBC’s ability to function effectively and to fulfill its mandate. On that basis, even if a prima facie Charter-based right of access had been established, the Court held that the applicants’ claim would have been outweighed by these countervailing considerations related to institutional functioning and economic viability.

Outcome of the case and implications

In the result, the Federal Court dismissed the application in its entirety. It held that CBC met its burden under section 48(1) of the ATIA to justify the use of the paragraph 18(b) exemption, and that there was no violation of the applicants’ freedom of expression or of the press under section 2(b) of the Charter. The decision confirms that a publicly funded institution like CBC can rely on economic-interest exemptions to protect competitively sensitive financial information where it can show, through credible and experience-based evidence, a reasonable expectation of probable harm. It also reinforces the high threshold for converting access requests into constitutionally protected rights: claimants must demonstrate that specific information is truly necessary—not just useful—for meaningful public debate. Ultimately, the successful party is the Canadian Broadcasting Corporation, and there was no monetary award, damages or costs ordered in its favour; the total amount granted or ordered in the judgment is therefore nil.