Executive Summary: Key Legal and Evidentiary Issues

• Whether section 24.3 of the Export Development Act applies to information created by EDC, not just received from customers

• Scope and interpretation of section 18.1 of the Access to Information Act regarding trade and confidential information

• Whether policy numbers and maximum liability amounts fall under statutory exemptions from disclosure

• Relevance of EDC’s internal policies in proving consistent confidentiality treatment

• Whether the Federal Court erred in introducing a “reasonable nexus” test under section 18.1

• Importance of harmonizing statutory interpretation with legislative history and Crown corporation obligations

Facts and outcome of the case

Background and initial dispute

This case arose from a 2019 access to information request made to Export Development Canada (EDC) under the Access to Information Act (ATIA). The request sought details of financial assistance provided by EDC to Canadian companies operating in Honduras between 2009 and 2019, specifically names, types of assistance, and amounts. EDC partially complied, but withheld certain information—including policy numbers and maximum liability amounts—arguing that these were protected by statutory exemptions.

The Information Commissioner of Canada ordered disclosure of that withheld information. EDC sought judicial review at the Federal Court, which upheld the Commissioner’s decision. EDC then appealed to the Federal Court of Appeal (FCA).

Legal issues and statutory framework

At the heart of the dispute were two exemptions in the ATIA:

1. Section 24, which incorporates other statutory prohibitions such as section 24.3 of the Export Development Act—a provision stating that information obtained by EDC in relation to its customers is privileged and cannot be disclosed without consent.

2. Section 18.1, which offers discretionary exemption for trade, financial, commercial, or technical information that “belongs to” certain Crown corporations and has been consistently treated as confidential.

The Federal Court rejected EDC’s reliance on section 24.3, holding that it did not apply to information EDC created itself. It also ruled that EDC failed to meet the requirements of section 18.1 because the information had no economic nexus and was not consistently treated as confidential.

Federal Court of Appeal decision

The FCA overturned the Federal Court’s decision, siding with EDC. Justice Woods, writing for a unanimous panel, held that the phrase “obtained by” in section 24.3 of the Export Development Act should be interpreted broadly enough to include information created by EDC itself, not just information directly supplied by customers. The Court found that Parliament intended to offer robust confidentiality protections to EDC customers, comparable to the protections offered by banks.

On section 18.1, the FCA clarified that the Federal Court incorrectly introduced a “reasonable nexus” test and misunderstood the requirement that the information “belongs to” the institution. While the FCA refrained from a full re-analysis of section 18.1, it acknowledged the concerns raised by the interveners—Public Sector Pension Investment Board and Canada Post—about the overly narrow interpretation in the lower court.

Final outcome

The FCA allowed the appeal and set aside the Federal Court's judgment. It ruled that the disputed information—policy numbers and liability amounts—was protected by the section 24.3 exemption and therefore should not be disclosed. No costs or damages were awarded to any party.