Bristol-Myers Squibb Canada Co. v. Canada (Attorney General), 2005 FC 235

                                                                                                                                  Date: 20050214

                                                                                                                           Dockets: T-1195-04

                                                                                                                                           T-1196-04

                                                                                                                        Citation: 2005 FC 235

BETWEEN:

                                              MEAD JOHNSON NUTRITIONALS

                              a division of BRISTOL-MYERS SQUIBB CANADA CO.

                                                                                                                                            Applicant

                                                                           and

                                             ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

STRAYER D.J.

Introduction

[1]                These are two applications for judicial review under subsection 44(1) of the Access to Information Act (RSC 1985 c. A-1). As they were argued together I will deal with both applications in one set of reasons.

Facts

[2]                In May, 2004 the applicant (Mead Johnson) received two letters from the Canadian Food Inspection Agency (CFIA) advising that CFIA had received two requests for the release by CFIA of certain records, some of which related to Mead Johnson. CFIA advised as to the records it intended to release and gave Mead Johnson the opportunity to state its views. After some further correspondence in which many of Mead Johnson's objections were accepted, the CFIA finally advised Mead Johnson of the materials it still intended to release. Mead Johnson objected and brings this proceeding invoking the following provisions of the Access to Information Act.

As the assertions in respect of the different records in dispute in T-1195-04 and T-1196-04 are somewhat different, I will deal with them separately.

[3]                This hearing was of course conducted in camera and involved the examination of records for which the applicant still claims confidentiality. I will avoid breaching that confidentiality in case there should be an appeal.

                                                                      T-1195-04

[4]                In this file the applicant in its public memorandum describes the information in question as:

. . . regarding its marketing plans or activities with respect to any of its products, including Enfamil A+, and regarding its legal position with respect to certain Enfamil A+ performance representations, including the interpretation or enforcement of the Food and Drugs Act and its Regulations in relation to Mead Johnson's commercial activities. . . . (Applicant's record, public version, page 14, para. 14).

In respect of this material Mead Johnson claims that CFIA erred in not applying to it the exemption set out in paragraphs 20(1)(b) and (c) of the Act (supra).

[5]                Subsection 2(1) of the Act states that its purpose is to provide a right of access to information in records under the control of government institutions and that necessary exceptions to the right of access should be limited. It has long since been settled that the onus is on a third party such as the applicant here, in objecting to disclosure, to prove that the disputed record comes within one of the exceptions in section 20: see e.g. Maislin Industries Limited v. Minister for Industry Trade and Commerce et al [1984] 1 F.C. 939. I am not satisfied that the applicant here has met that burden of proof. The applicant asserts in its written argument that this information is "necessarily commercial . . . as it relates directly to the business activities of Mead Johnson and certain underlying rationales for such activities". The affidavit in support does not elaborate on these assertions and the respondent takes issue with them. I accept, without necessarily deciding, that the material in question is of a commercial nature, within paragraph 20(1)(b) of the Act. I am also prepared to accept the applicant's argument that the information came from a third party, namely the applicant, as it appears to be records of communications with the applicant. I am not satisfied however that it has been proved that the record in question is "confidential". One of the accepted requirements for confidentiality, as enunciated in the Air Atonabee Limited v. Canada (1989), 27 F.T.R. 194 at 210 is that

the information must originate and be communicated in circumstances giving rise to a reasonable expectation of confidence that it will no be disclosed . . . .

Whether a record is confidential must be determined on an objective basis including its content, purpose, and the conditions under which it was communicated: see e.g. Maislin (supra), Air Atonabee (1989), 27 F.T.R. 194 (T.D.), Sociétée Gamma Inc. v. Canada, [1994] F.C.J. No. 589. The mere assertion by one party, in providing the information, that it is confidential is not determinative: see Ottawa Football Club v. Canada, [1989] 2 F.C. 480. Even if the government institution agrees that it should be confidential this is not determinative: see Canada v. Atlantic Canada Opportunities Agency [1999] F.C.J. No. 1723 (C.A.). In the present case the rather meagre affidavit evidence does not establish the elements of confidentiality. The affidavit in support says that the information was treated as confidential by Mead Johnson, although without elaborating on how confidentiality was maintained. The affidavit simply states that the records in question were provided to CFIA "in a reasonable expectation of confidence that these details would not be disclosed" and "in confidence and with a reasonable expectation that it would remain confident". The deponent of this affidavit does not state that she herself participated in such communications nor that she had even been informed by people who did so participate. The documentary material she attaches as exhibits to her affidavit falls far short of demonstrating that it was made clear to CFIA that communications were sent with the intention that they should be confidential, nor is there any documentary material from CFIA confirming confidentiality. As far as I can ascertain the only letter from Mead Johnson to the CFIA bearing on confidentiality and exhibited in the affidavit was written on May 31, 2004 well after any of the communications now sought to be protected from disclosure. In this letter there are several mentions made of the intention of Mead Johnson that such communications should be confidential. The only earlier letter making similar assertions, that of January 23, 2002 was not written to CFIA but to Health Canada and concerned information being provided to Health Canada on the formulations for the products, matters which might readily be seen to be of a commercial, technical, and confidential nature. But those records are not in issue here.

[6]                The records in question here cannot, in my view, be seen as fundamentally concerned with either marketing or production but instead involve rather minor references to the applicant's position on certain regulatory matters - matters of public concern within the mandate of the CFIA.

[7]                I am therefore not prepared to set aside the decision of the CFIA to release the records covered in application T-1195-04.

                                                                      T-1196-04

[8]                In this file the process for disclosure of a record was commenced by a request to CFIA for "copies of IMS comments by Sharon Brearley between November 15, 2002 and November 30, 2002". After communications between CFIA and Mead Johnson, and a considerable narrowing of the record proposed by CFIA to be released, the record actually proposed to be released consisted of IMS comments by a Nathalie Gagnon made on January 20, 2003. It will be noted that this is not what was requested.

[9]                The applicant seeks a declaration that this record should not be released because it is not responsive to the request that was made to CFIA, that it is commercial information treated consistently in a confidential manner by Mead Johnson within paragraph 20(1)(b) of the Act, and that its disclosure could reasonably be expected to result in material financial loss to Mead Johnson within paragraph 20(1)(c) of the Act.

[10]            I am satisfied that the applicant has no standing to complain that the proposed disclosure is not responsive to the request by an outside party which initiated the disclosure process. Clearly the proposed disclosure is not within the terms of the original request. It was held by the Federal Court of Appeal in Saint John Shipbuilding Ltd. v. Canada (1990), 67 D.L.R.(4^th) 315, however, that a third party cannot object that the government institution is prepared to give more than was asked for. This reasoning proceeds on the basis that section 2 of the Access to Information Act states its purpose to be "that government information should be available to the public" and "that necessary exceptions to the right of access should be limited". Section 27 provides that where the Head of a government institution intends to disclose "any record requested" and he has reason to think that it might contain third party information of a kind protected under section 20 he must give written notice to the third party "of the request" and that he intends "to disclose the record". "The record" must be taken to refer back to the "record requested" referred to in subsection 27(1). Further under section 28 a third party is given the right to make representations "as to why the record . . . should not be disclosed". Again, the word "record" must refer back to the "record requested" described in subsection 27(1). This means that a third party cannot complain if a government institution discloses records that were never requested which is what the applicant complains of here. I respectfully agree with the conclusion of Russell J. in this respect in Canadian Tobacco Manufacturers' Council v. Canada, [2003] F.C.J. No. 1308 at para. 91.

[11]            With respect to the assertion that the record in question is exempt from disclosure on the basis of paragraph 20(1)(b), I am no more satisfied in this application than in T-1195-04 that the evidence presented by the applicant demonstrates on a balance of probabilities that this material is confidential in an objective sense. Again the deponent of the affidavit in support does not indicate that she was personally involved in relevant communications with CFIA. She provides no information as to any specific representations made by Mead Johnson to CFIA that the information being provided was to be treated as confidential nor any evidence that CFIA understood it to be so. All she asserts is that they were provided "in a reasonable expectation of confidence". This does not meet the burden of proof cast upon the applicant.

[12]            The applicant also claims an exemption from disclosure of this record under paragraph 20(1)(c) of the Act on the ground that it is information whose disclosure "could reasonably be expected to result in material financial loss . . ." for the applicant. The Federal Court of Appeal has held that the standard of proof of harm here is the demonstration of "a reasonable expectation of probable harm": Canada Packers Inc. v. Canada, [1989] 1 F.C. 47; Saint John Shipbuilding Ltd. v. Canada (supra). I am satisfied that the applicant's evidence does not reach this standard. It is certainly not self-apparent to look at the disputed record that its disclosure would likely result in any material harm to the applicant. The only evidence it has produced in support of its invocation of paragraph 20(1)(c) is the following paragraph which appears in both its public and confidential record:

Details about consumer complaints with respect to any of Mead Johnson's products is information that Mead Johnson endeavours to keep out of the public domain and out of the hands of competitors, who may use this information to damage the goodwill of Mead Johnson and harm Mead Johnson's competitive position.

This is so lacking in specifics as to fall far short of establishing, on a balance of probabilities, a reasonable expectation of probable harm.

Disposition

[13]            For these reasons both applications will be dismissed with one set of costs.

                                                                                                                           (s) "Barry L. Strayer"          

Deputy Judge

                                                 FEDERAL COURT OF CANADA

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           T-1195-04 - T-1196-04

STYLE OF CAUSE:               MEAD JOHNSON NUTRITIONALS a division of BRISTOL-MYERS SQUIBB CANADA CO. v. ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                     Ottawa, Ontario

DATE OF HEARING:                       January 26, 2005

REASONS FOR ODER:                   Strayer, D.J.

DATED:                                              February 14, 2005

APPEARANCES:

Ms. Catherine P. Coulter

Ms. Amy McKinnon                                                                                       FOR THE APPLICANT

Mr. Kris Klein                                                                                            FOR THE RESPONDENT

SOLICITORS OF RECORD:

Fraser Milner Casgrain LLP

Ottawa, Ontario                                                                                              FOR THE APPLICANT

Mr. John H. Sims, Q.C.

Deputy Attorney General

Ottawa, Ontario                                                                                          FOR THE RESPONDENT