Date: 20050607
Docket: A-515-04
Citation: 2005 FCA 215
CORAM: DESJARDINS J.A.
NOËL J.A.
PELLETIER J.A.
BETWEEN:
MINISTER OF HEALTH CANADA
Appellant
and
MERCK FROSST CANADA & CO.
Respondent
Heard at Ottawa, Ontario, on June 7, 2005.
Judgment delivered from the Bench at Ottawa, Ontario, on June 7, 2005.
REASONS FOR JUDGMENT OF THE COURT: DESJARDINS J.A.
Date: 20050607
Docket: A-515-04
Citation: 2005 FCA 215
CORAM: DESJARDINS J.A.
NOËL J.A.
PELLETIER J.A.
BETWEEN:
MINISTER OF HEALTH CANADA
Appellant
and
MERCK FROSST CANADA & CO.
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on June 7, 2005)
DESJARDINS J.A.
[1] The trial judge erred in law in ruling that the documents in question meet the criteria for the exemption under paragraph 20(1)(b) of the Access to Information Act, R.S.C. 1985, c. A-1, as amended (the Act), because the information they contain is not as such in the public domain (see paragraph 53 of the decision under appeal, cited Merck Frosst Canada & Co. v. Canada (Minister of Health), 2004 FC 959).
[2] In our view, once the information is within the public domain, it is no longer confidential, even if it differs in form.
[3] To rely on the form in which the information is presented in order to conclude that a document meets the criteria for the exemption under paragraph 20(1)(b) of the Act is necessarily contrary to the spirit of the Act and to the cases to date on this point (Air Atonabee Ltd. v. Canada (Minister of Transport), [1989] F.C.J. No. 453; Merck Frosst Canada Inc. v. Canada (Minister of Health and Welfare), [1988] F.C.J. No. 290; Merck Frosst Canada Inc. v. Minister of National Health, [2000] F.C.J. No. 1281, paragraph 9). The important thing is the information. The form in which it is presented cannot preclude its disclosure.
[4] The trial judge could not, therefore, find that because the information contained in the documents is not in the public domain as such, these pages are confidential.
[5] It is possible, as the respondent's counsel points out, that the trial judge had in mind paragraph 20(1)(c), but that is not what he said and it is not what we understand from his judgment. If this was what the trial judge had in mind, the route he took was such that his error becomes inextricable.
[6] The trial judge could not find, either, that the reviewer's notes and the correspondence between the parties should not be communicated under paragraph 20(1)(b) of the Act solely because they were written in response to the respondent's request. The information in the reviewer's notes contains certain information that does not emanate from the respondent, and the fact that these notes were written pursuant to the respondent's request does not affect this situation in any way (Canada Packers Inc. v. Canada (Minister of Agriculture), [1988] 1 F.C. 483, aff'd [1989] 1 F.C. 47).
[7] Having identified these errors, this Court could itself undertake a review of the thousands of documents in question to determine, on the one hand, whether paragraph 20(1)(c) should apply, and if not, whether any of the other exceptions is applicable.
[8] We do not think the interests of justice would be well served by this. In the circumstances, the appeal will be allowed with costs both at trial and on appeal, the decision of the trial judge will be reversed and the matter will be referred back to the Federal Court under paragraph 52(b)(ii) of the Federal Courts Act, R.S.C. 1985, c. F-7, for redetermination before another judge, who shall take these reasons into account.
"Alice Desjardins"
J.A.
Certified true translation
Yves Bellefeuille, reviser
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-515-04
APPEAL FROM AN ORDER OF THE HONOURABLE MR. JUSTICE HARRINGTON DATED JULY 6, 2004 IN DOCKET T-90-01
STYLE OF CAUSE: MINISTER OF HEALTH CANADA
v. MERCK FROSST CANADA & CO.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: June 7, 2005
REASONS FOR JUDGMENT
OF THE COURT: Desjardins J.A.
Noël J.A.
Pelletier J.A.
DELIVERED FROM THE
BENCH BY: Desjardins J.A.
APPEARANCES:
Sébastien Gagné FOR THE APPELLANT
Karl Delwaide FOR THE RESPONDENT
Karine Joizil
SOLICITORS OF RECORD:
John H Sims, Q.C. FOR THE APPELLANT
Deputy Attorney General of Canada
Ottawa, Ontario
Fasken Martineau DuMoulin FOR THE RESPONDENT
Montréal, Quebec
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