Date: 20061012

Docket: T-90-01

Citation: 2006 FC 1201

Ottawa, Ontario, the 12th day of October 2006

PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY

 

BETWEEN:

MERCK FROSST CANADA LTD.

Applicant

and

 

THE MINISTER OF HEALTH

OF CANADA

Respondent

 

 

REASONS FOR JUDGMENT AND JUDGMENT

(public version)

 

[1]               This is an application for judicial review under section 44 of the Access to Information Act, R.S.C 1985, c. A-1 (the Act) of a January 2, 2001 decision of the respondent with regard to the disclosure of records concerning the New Drug Submission (NDS) for SINGULAIR® (Singulair), a drug developed by the applicant for the treatment of asthma. The applicant is asking this Court to issue a declaratory order with regard to the lawfulness of the procedure followed by the applicant in processing the request for access to information, as well as an order under subsection 20(1) of the Act prohibiting disclosure of the records to which the impugned decision pertains.

 

I.          Issues

[2]               The issues raised by the parties are as follows:

1. Is the applicant entitled to obtain a declaratory order with regard to the lawfulness of the procedure followed by the respondent in processing the access request?
2. If the response to question 1 is in the affirmative, does the procedure followed by the respondent in processing the access request comply with the Act?
3. Does the respondent’s decision to disclose the records that are the subject of the access request comply with the exceptions set out in subsection 20(1) of the Act?

 

II.        Factual background

[3]               On July 19, 2000, the respondent received from a third party (the requestor third party) a request for access to information under section 4 of the Act concerning the records respecting the NDS for Singulair.

 

[4]               Under the Food and Drug Regulations, C.R.C., c. 870, the NDS allows a pharmaceutical company to obtain authorization to market a new drug after satisfying the respondent of the drug’s effectiveness, safety and quality.

 

[5]               The documents that are the subject of the access request are as follows:

Notice of Compliance, Comprehensive Summary, Reviewer’s Notes and any correspondence between Health Canada and Merck Frosst regarding the review of the New Drug Submission for SINGULAIR Tablet and Chewable Tablets.

 

 

[6]               Ms. Margery Snider, of the Access to Information division at Health Canada, assembled 547 pages of records. These records were then forwarded to Ms. Merry Joy Bujaki and Mr. Ian Dobson, proprietary and scientific information assessment officers at the Therapeutic Products Directorate, which forms part of the Health Products and Food Branch.

 

[7]               The records assembled can be divided into four parts:

1. Notice of Compliance;
2. Comprehensive Summary;
3. Reviewer’s Notes; and
4. correspondence between the parties.

 

[8]               Ms. Bujaki and Mr. Dobson first examined the records and, on August 14, 2000, submitted recommendations with regard to the information contained in the records that should not be disclosed under subsection 20(1) of the Act.

 

[9]               Ms. Bujaki and Mr. Dobson also submitted recommendations with regard to the records that, in their opinion, might be disclosed directly to the requestor third party since they did not fall under any of the exceptions set out in the Act.

 

[10]           On August 16, 2000, the respondent’s representatives deleted some passages from the records, in the belief that subsection 20(1) of the Act applied. Out of the 547 pages of records, only 32 contained passages that were deleted under subsection 20(1) of the Act at this stage of processing.

 

[11]           While waiting for the applicant’s representations in response to the notice sent under section 27 of the Act, the respondent refrained from disclosing most of the records directly to the requestor third party.

 

[12]           However, approximately 20 pages of records were disclosed without prior notice being sent to the applicant, since the respondent considered that no exceptions applied to those pages.

 

[13]           The August 16, 2000 letter sent to the applicant by Ms. Snider on behalf of the respondent included 525 pages of records (numbered from 1 to 547). Ms. Snider asked the applicant to send her, within 20 days after that notice was sent, its representations setting out reasons as to why all or part of those records should not be disclosed under subsection 20(1) of the Act.

 

[14]           The applicant obtained an extension of the deadline for responding until September 25, 2000.

 

[15]           On September 11, 2000, the applicant received by facsimile a copy of the approximately 20 pages of records that were sent directly to the requestor third party without prior notice being sent to the applicant.

 

[16]           On September 25, 2000, the applicant responded to the respondent’s notice. The highlights of the applicant’s representations may be summarized as follows:

-         under subsection 20(1) of the Act, the applicant objected to the disclosure of all of the records sent to it on August 16, 2000 and to the disclosure of the approximately 20 pages already sent to the requestor third party without prior notice being sent to the applicant;

-         the applicant objected to the procedure followed by the applicant in initially processing the access request, submitting that it does not comply with the Act. The applicant argued that subsection 20(1) requires the respondent to carry out a genuine and thorough examination of the records, instead of sending them in bulk to the applicant for the applicant to carry out this work within a very tight deadline; and

-         the applicant provided to the respondent the monograph on Singulair, which is available in the public domain and is sent to all health care professionals. The applicant also sent to the respondent 75 scientific articles that had been published under the applicant’s control and suggested that the respondent disclose these articles to the requestor third party.

 

[17]           On October 19, 2000, the respondent received from the applicant an annotated copy of the records sent out on August 16, 2000. The annotations correspond to the applicant’s September 25, 2000 representations.

 

[18]           This annotated copy of the records and the September 25, 2000 letter were forwarded to Ms. Bujaki, who analyzed them.

 

[19]           On January 2, 2001, the applicant received from the respondent a notice under section 28 of the Act informing it of the respondent’s decision to disclose the records from which it had deleted information further to the applicant’s representations. Accompanying that notice were 335 pages of records from which a great deal more information was deleted than was the case in the records accompanying the August 16, 2000 letter.

 

[20]           However, the respondent also informed the applicant that a number of its representations were not specific or detailed enough to justify excluding the rest of the records under subsection 20(1) of the Act.

 

[21]           On January 19, 2001, the applicant therefore filed with this Court the present application for judicial review of the January 2, 2001 decision.

 

III.       Brief procedural background

A.        Federal Court

[22]           The present application for judicial review was initially heard by Mr. Justice Harrington in 2004 (Merck Frosst Canada & Co. v. Canada (Minister of Health), 2004 FC 959, [2005] 1 F.C.R. 587).

 

[23]           Harrington J. allowed the application for judicial review in part, and found that, under subsection 20(1) of the Act, the respondent was required to refuse to disclose all of the Comprehensive Summary, the Reviewer’s Notes, and the correspondence. Although some of the information contained in these three parts of the records was available in the public domain in another form, Harrington J. considered that this information was not available “as such” and therefore remained confidential.

 

[24]           However, Harrington J. determined that the disclosure of the Notice of Compliance did not contravene subsection 20(1) of the Act, and that the respondent was entitled to disclose it directly to the requestor third party without consulting the applicant.

 

[25]           Harrington J. also found that the respondent should not have disclosed certain records to the requestor third party without giving prior notice to the applicant, and that the applicant was entitled to obtain a declaratory order to this effect.

 

B.         Federal Court of Appeal

[26]           The Federal Court of Appeal overturned the finding by Harrington J. (Merck Frosst Canada & Co. v. Canada (Minister of Health), 2005 FCA 215, [2006] 1 F.C.R. 379).

 

[27]           Writing for that Court, Madam Justice Desjardins found that Harrington J. erred in law at paragraph 53 of his reasons in ruling that, for confidentiality to be lost, the information requested must be available "as such" in the public domain.

 

[28]           The Federal Court of Appeal stated that, essentially, the confidentiality of the information protected by paragraph 20(1)(b) of the Act pertains to the pith and substance of this information, not the form it takes. Therefore, as soon as information is available in the public domain it is no longer confidential, regardless of possible differences between the form it takes in records in the possession of a government institution and the form it takes in the public domain.

 

[29]           The Federal Court of Appeal also stated that the Reviewer’s Notes could not be protected under paragraph 20(1)(b) of the Act, since they emanated from the respondent and paragraph 20(1)(b) protects only records emanating from the third party affected by an access request.

 

[30]           Lastly, the Federal Court of Appeal returned the case to this Court under subparagraph 52(b)(ii) of the Federal Courts Act, R.S.C. 1985. c. F-7, for redetermination before another judge, who is to take into account that Court’s reasons.

 

IV.       Relevant legislative provisions

[31]           The relevant provisions of the Act are as follows:

 

V.        Arguments by the parties

1.         Is the applicant entitled to obtain a declaratory order with regard to the lawfulness of the procedure followed by the respondent in processing the access request?

[32]           The applicant is contesting two components of the procedure followed by the respondent in processing the access request. The applicant objects, firstly, to the August 16, 2000 decision to disclose records to the requestor third party without prior notice being sent to the applicant. The applicant objects, secondly, to the fact that the respondent placed on the applicant the onus of establishing why disclosure of the records should be refused under subsection 20(1) of the Act without having carried out a genuine and thorough examination of the records before sending the notice under section 27 of the Act.

 

A.        The August 16, 2000 decision

(1)        The respondent

[33]           The respondent argues that its August 16, 2000 decision does not fall under this Court’s power of judicial review.

 

[34]           From a procedural standpoint, the respondent states that, even though the August 16, 2000 decision refers to the same access request, it is separate from the January 2, 2001 decision that is the subject of the present application for judicial review.

 

[35]           In the respondent’s opinion, the applicant is therefore attempting to obtain judicial review of two decisions by means of a single application, which would contravene Rule 302 of the Federal Courts Rules, SOR 98/106, which provides that “[u]nless the Court orders otherwise, an application for judicial review shall be limited to a single order in respect of which relief is sought.”

 

[36]           The respondent also argues that the applicant is entitled to judicial review only after a notice is given under section 28 of the Act. Since no notice under section 28 with regard to the August 16, 2000 decision was given to the applicant, the applicant may not apply for judicial review of this matter under section 44 of the Act.

 

[37]           Alternatively, the respondent states that, even if this Court had the necessary jurisdiction to hear an application for judicial review of the August 16, 2000 decision under section 44 of the Act, the application for judicial review made by the applicant has long been out of time. The respondent emphasizes that the applicant did not file a motion for an extension of time, or provide any explanation justifying this delay.

 

[38]           Still from a procedural standpoint, the respondent argues that section 51 of the Act does not allow this Court to issue a declaratory order setting aside the August 16, 2000 decision. Section 51 provides that the Court may issue such an order only if it first determines that the respondent is required to refuse to disclose the records. The respondent argues that disclosure of these records is not excluded by subsection 20(1) of the Act.

 

[39]           From a merits standpoint, the respondent alleges that this Court should not address the lawfulness of the August 16, 2000 decision because, since the records have already been disclosed to the requestor third party, this exercise would be purely theoretical: issuing a declaratory order with regard to the lawfulness of that decision would have no practical effect on the parties and would be of no use in future proceedings.

 

(2)        The applicant

[40]           The applicant states that it wishes to prevent such a disclosure without prior notice from occurring again, and argues that relief under section 44 of the Act is the only form of relief available to it. The applicant states that a declaratory order with regard to the lawfulness of the August 16, 2000 decision would be very useful since it would be binding on the respondent in its processing of access requests and in the process of consulting third parties.

 

[41]           If this Court were to find that the applicant was not entitled to obtain a declaratory order with regard to the lawfulness of the August 16, 2000 decision, the applicant seeks an order that would prevent the respondent from disclosing the information contained in an NDS without first obtaining representations from the third party concerned, in accordance with section 27 of the Act.

 

[42]           The Court takes note of the procedural arguments put forward by the respondent. However, dividing decisions having to do with the same access request would lead to a proliferation of proceedings by third parties objecting to the disclosure of records. Such a situation would contravene Rule 3 of the Federal Courts Rules, which provides as follows:

 

 

[43]           As well, although addressing the lawfulness of the decision is a theoretical exercise since disclosure has already taken place, the stakes are serious enough to justify a determination by this Court on this question.

 

[44]           This Court therefore finds that the applicant is entitled to obtain a declaratory order with regard to the lawfulness of the August 16, 2000 disclosure of records without prior notice.

 

B.         The procedure of placing on the applicant the onus of establishing that the respondent should refuse to disclose the records under subsection 20(1) of the Act

(1)        The respondent

[45]           The respondent alleges that a judicial review of the lawfulness of the decision-making process would be a purely theoretical exercise since the judicial review of a decision by the head of a government institution under section 44 of the Act must be conducted de novo (Air Atonabee Ltd. (c.o.b. City Express) v. Canada (Minister of Transport), [1989] F.C.J. No. 453 (T.D.) (QL); Aliments Prince Foods Inc. v. Canada (Department of Agriculture and Agrifood), [2001] F.C.J. No. 144 (F.C.A.) (QL); Bacon International Inc. v. Canada (Department of Agriculture and Agri-Food), [2002] F.C.J. No. 776 (T.D.) (QL)).

 

[46]           The respondent argues that this Court’s role is to analyze the decision-maker’s decision in cases where the decision-maker has determined, on the basis of the evidence, whether a paragraph of subsection 20(1) of the Act applies, not to address the lawfulness of the procedure leading to the January 2, 2001 decision.

 

[47]           The respondent reiterates the arguments it submitted in response to the previous question: section 44 of the Act does not entitle the applicant to a judicial review of the merits of the January 2, 2001 decision, and section 51 of the Act does not allow this Court to issue a declaratory order with regard to the procedure unless it first determines that the respondent is required to refuse to disclose the records that are the subject of the access request.

 

[48]           The respondent argues that the January 2, 2001 decision was correct, given the exceptions set out in subsection 20(1) of the Act.

 

(2)        The applicant

[49]           In the applicant’s opinion, the procedure followed by the respondent was so irregular as to cast doubt on the merits of the January 2, 2001 decision, and thus it would be undesirable to attempt to separate completely the decision-making process from the decision itself. In the applicant’s opinion, the expression “review of the matter” found in section 44 of the Act is broad enough to cover both the decision and the decision-making process.

 

[50]           From a practical standpoint, relief under section 44 of the Act is the only form of relief available to the applicant. The applicant argues that it would be in the interests of justice for this Court to analyze the procedure followed by the respondent, and that the de novo nature of the present judicial review should not limit this Court’s latitude.

 

[51]           In response to the respondent’s arguments with regard to sections 44 and 51 of the Act, the applicant states that, since the January 2, 2001 decision was incorrect on the merits and since the condition set out in section 51 of the Act has been met, there is nothing to prevent this Court from issuing a declaratory order with regard to the process leading to that decision.

 

[52]           After considering at length the arguments put forward by the parties, this Court is of the opinion that it is artificial to consider the procedure followed by the respondent in processing an access request as being so hermetically separate from the merits of the final decision as to make its examination moot as part of an application for judicial review.

 

[53]           Since this Court finds that part of the records that are the subject of the access request should not be disclosed under subsection 20(1) of the Act, section 44 of the Act constitutes no bar to consideration by this Court of both the decision-making process and the merits of the decision.

 

[54]           This Court therefore finds that the applicant is entitled to obtain a declaratory order with regard to the lawfulness of the procedure that placed on it the onus of establishing that the respondent should refuse to disclose the records under subsection 20(1) of the Act.

 

2.         If the response to question 1 is in the affirmative, does the procedure followed by the respondent in processing the access request comply with the Act?

A.                 The August 16, 2000 decision

(1)        The applicant

[55]           The applicant argues that the disclosure of records by the respondent without prior notice being sent to the applicant contravenes the Act.

 

[56]           The applicant relies on the expression “shall” in the wording of subsection 27(1) of the Act to emphasize what it considers to be the respondent’s duty to consult.

 

[57]           The applicant also notes that it never waived its right to be consulted under subsection 27(2) of the Act.

 

[58]           From the standpoint of legislative interpretation, the applicant states that the intent of Parliament seems clear. As a result, when a government institution intends to refuse to disclose a record, there is no need for consultation under subsection 27(1) of the Act.

 

[59]           In those circumstances, the applicant’s rights are protected since there is no risk of disclosure. However, if the government institution intends to disclose all or part of the records, the Act and the principles of procedural fairness require that the applicant be given prior notice so that it may make representations.

 

[60]           If the respondent discloses records that are confidential within the meaning of paragraph 20(1)(b) of the Act, the loss of the confidentiality of these records causes irreparable harm to the applicant. The applicant challenges the respondent’s position that these records are unquestionably not covered by subsection 20(1).

 

(2)        The respondent

[61]           The respondent’s position is diametrically opposed to that of the applicant. In the respondent’s opinion, the wording of subsection 27(1) of the Act clearly provides that prior notice is required only if the respondent “has reason to believe” that the records might contain information covered by subsection 20(1) of the Act. In this regard, the respondent states that, after the initial examination of these records, it was clear to the respondent that subsection 20(1) was unlikely to apply to these records and that, as a result, no prior notice was required.

 

[62]           According to the respondent, therefore, the evidence unequivocally establishes that the records disclosed on August 16, 2000 were not covered by subsection 20(1) of the Act.

 

[63]           In the opinion of this Court, it is irrelevant that the records disclosed without prior notice are not subject to subsection 20(1) of the Act. The interpretation advocated by the respondent would give the respondent a power to determine subsection 20(1) applicability that would be sheltered from any judicial supervision and could cause irreparable harm to third parties affected by access requests.

 

[64]           This Court therefore finds that the disclosure of records by the respondent without prior notice contravened the spirit of subsection 20(1) of the Act. Since this procedure could cause irreparable harm to a third party concerned, such as the applicant, if the respondent erred in concluding that subsection 20(1) did not apply to these records, the disclosure without prior notice should not have taken place.

 

B.                  The procedure of placing on the applicant the onus of establishing that the respondent should refuse to disclose the records under subsection 20(1) of the Act

            (1)        The applicant

[65]           The applicant argues that the procedure followed by the respondent does not comply with the respondent’s duty under the Act to carry out a genuine and thorough examination of the records before asking the applicant to make representations.

 

[66]           In failing to carry out such an examination, the respondent breached this duty, placing an unreasonable onus on the applicant and putting the applicant in a position that prevents attainment of the balance sought in Canadian law between access to information held by the government and genuine protection of the strategic information, particularly on research and development, of Canadian pharmaceutical companies.

 

[67]           The applicant states that, after receiving the access request, the respondent did not carry out a genuine examination or analysis in order to determine whether the information on the NDS requested might be excepted under subsection 20(1) of the Act.

 

[68]           In the applicant’s opinion, the respondent may not transfer its responsibilities by doing an initial cursory examination of the records and then requiring the applicant to provide records from which passages have been deleted, page by page, word by word, under penalty of having the records disclosed if its representations are not detailed enough.

 

[69]           The applicant also argues that the procedure followed by the respondent contravenes the Treasury Board directive on the processing of access requests.

 

[70]           The applicant alleges that the provisions of this directive strengthen the applicant’s interpretation of subsection 20(1) of the Act. Thus, the purpose of giving notice to a third party under section 27 of the Act is to eliminate any doubt by allowing the third party to “check” the government institution’s position on what it intends to disclose. At that point, the third party would be able to carry out this exercise with full knowledge of the situation and would be able to rely on a thorough “initial examination” by the government institution.

 

[71]           The applicant also argues that the procedure followed by the respondent contravenes the respondent’s duty to act fairly, in that the respondent did no more than give the records a cursory examination, transfer them “in bulk” to the applicant for its representations, and then dismiss those same representations, alleging that they were not specific or detailed enough.

 

            (2)        The respondent

[72]           The respondent argues that the procedure it followed in reaching its January 2, 2001 decision is legal.

 

[73]           The respondent points out that the onus placed on government institutions by section 27 of the Act is simply that they be satisfied that the records to be disclosed might contain information covered by subsection 20(1) of the Act.

 

[74]           Thus the “genuine and thorough” examination at an initial stage that the applicant is demanding is not required by the Act. Since the respondent was satisfied, after an initial examination of the records, that the records it wanted to disclose might contain information covered by subsection 20(1) of the Act, it acted rightly in sending the notice under section 27 of the Act.

 

[75]           The respondent states that the Act places on the third party affected by an access request the onus of establishing that a government institution is required to refuse to disclose the information under subsection 20(1) of the Act.

 

[76]           In the respondent’s opinion, requiring specific representations justifying refusal of disclosure is neither capricious nor illegal, since section 2 of the Act provides that exceptions to the right of access to information must be “limited and specific”.

 

[77]           The respondent argues that many of the applicant’s representations were not specific enough, citing a vague possibility of harm as a result of disclosure of the records, but without establishing the limited and specific probability of such harm.

 

[78]           Despite the telling arguments put forward by the applicant on this point, in this Court’s opinion the procedure of placing on the applicant the onus of establishing that the respondent should refuse to disclose the records under subsection 20(1) of the Act is not illegal.

 

[79]           Since disclosure is the rule, and refusal to disclose is the exception, the respondent was required only to identify the passages of records to which subsection 20(1) of the Act was likely to apply, and then to ask the applicant to make representations with regard to the applicability of subsection 20(1) to all the records.

 

[80]           It is clear that the applicant is in a better position and has greater expertise than the respondent when it comes to identifying the passages of records that are the subject of an access request and to which subsection 20(1) of the Act is likely to apply, since most of the records emanate from the applicant.

 

[81]           This is also one of the arguments put forward by the applicant in support of its conclusions regarding the applicability of subsection 20(1) of the Act in response to the following question, which deals with the validity of the respondent’s conclusions regarding the applicability of subsection 20(1) to the records that are the subject of the access request.

 

[82]           For a third party, such as the applicant, this procedure unquestionably creates an onus and a considerable amount of work when an access request is made and when the time comes to reach a conclusion on the applicability of subsection 20(1) of the Act. However, this burden is not out of proportion if we consider the greater expertise of the third party and the importance that party is likely to attach to the protection of information about itself.

 

[83]           In short, the purpose of this procedure is to require the respondent to consult the applicant after a fairly cursory examination of the records, to take the applicant’s recommendations into account and, if it decides not to follow those recommendations, to explain why. If the applicant is dissatisfied with the respondent’s decision, it may apply to this Court under section 44 of the Act for a review of the respondent’s decision.

 

[84]           There remains, then, the task of considering the respondent’s decision de novo and determining whether the decision to disclose the records concerned in the present application for judicial review complies with the Act.

 

3.         Does the respondent’s decision to disclose the records that are the subject of the access request comply with the exceptions set out in subsection 20(1) of the Act?

(1)        The applicant

[85]           The errors cited by the applicant in requesting that the January 2, 2001 decision be set aside are as follows:

-         The respondent erred in considering that, at the initial stage of processing the access request, the onus is on the applicant to make specific and detailed representations (see also the response to the previous question).

-         The respondent’s agents applied paragraphs 20(1)(a), (b), (c) and (d) of the Act in a conjunctive, not a disjunctive, manner.

-         The respondent considers that the disclosure of certain records cannot cause harm if the information they contain is available in the public domain in another form. Although the Federal Court of Appeal dismissed a similar argument with regard to paragraph 20(1)(b) of the Act, the applicant maintains this argument in the case of certain records since paragraph 20(1)(c) of the Act would apply.

-         The respondent erred in considering that the applicant cannot object to the disclosure of the Reviewer’s Notes, since they emanated from and belong to the respondent.

 

[86]           The applicant has filed a detailed chart setting out all the disputed passages and highlighting its representations of why they should be deleted. This chart is reproduced in Appendix A to the confidential version of these reasons.

 

(2)        The respondent

[87]           The respondent argues that the disputed passages of the records do not meet the conditions set out in paragraphs 20(1)(b) and (c) of the Act. As a result, the applicant did not discharge its onus of establishing that disclosure should have been refused.

 

[88]           In addition, according to the respondent, the applicant’s argument that information, even if available in the public domain in another form, might be excepted under paragraph 20(1)(c) of the Act is not valid.

 

[89]           The respondent emphasizes that the affidavits filed by its witnesses contain specific and detailed explanations of why disclosure of these records does not cause harm.

 

[90]           The respondent has also filed a chart of responses to the applicant’s objections to disclosure of the disputed passages. This chart is reproduced in Appendix B to the confidential version of these reasons.

 

[91]           With regard to the Reviewer’s Notes and the correspondence, the Federal Court of Appeal (Merck Frosst Canada & Co. v. Canada (Minister of Health), 2005 FCA 215, [2006] 1 F.C.R. 379) overturned the finding by Harrington J. (Merck Frosst Canada & Co. v. Canada (Minister of Health), 2004 FC 959, [2005] 1 F.C.R. 587)) that these records were excluded under paragraph 20(1)(b) of the Act. At paragraph 6 of her reasons, Desjardins J.A. wrote the following:

The trial judge could not find, either, that the reviewers’ notes and correspondence between the parties should not have been communicated under paragraph 20(1)(b) of the Act solely because they were written up in response to the respondent’s request. The information contained in the reviewers’ notes reflects 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).

 

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 either of the other exceptions is applicable.

 

 

[92]           The Federal Court of Appeal, having determined that the interests of justice would not be well served by this, returned the case to this Court for redetermination, taking into account the reasons of the Federal Court of Appeal.

 

[93]           This Court has therefore considered the Reviewer’s Notes and the correspondence, and finds that page 527 contains information concerning the applicant that would harm the applicant if disclosed. Disclosure of this information should therefore be refused under paragraph 20(1)(c) of the Act.

 

[94]           The Federal Court of Appeal also overturned the finding by Harrington J. that records containing information available in the public domain may nevertheless be confidential within the meaning of paragraph 20(1)(b) of the Act if they are in a different form. At paragraph 53 of his reasons, Harrington J. wrote the following:

. . . the question is not really whether or not there is information in the public domain concerning SINGULAIR®, the question is whether the information as presented by Merck Frosst is in the public domain. If that information in the form presented “comme telle” (as such) is not in the public domain, confidentiality has not, in my opinion, been lost.

 

[95]           At paragraph 2 of her reasons, Desjardins J.A. found that, “once the information is within the public domain, it is no longer confidential, even if it differs in form”.

 

[96]           There remains the task of determining whether paragraph 20(1)(c) of the Act might apply to these records. The applicant argues that disclosure of this information “as such” could harm it and give its competitors an advantage.

 

[97]           In AstraZeneca Canada Inc. v. Canada (Health), 2005 FC 189, [2005] F.C.J. No. 859 (F.C.) (QL), Mr. Justice Phelan dealt with a similar issue, and found that the harm alleged by the applicant was too vague to justify refusal of disclosure of the records concerned under paragraph 20(1)(c) of the Act.

 

[98]           At paragraph 81 of his reasons, Phelan J. wrote the following:

AstraZeneca has claimed exemption from disclosure of publicly available information. It does so on the basis that no one knows that it used the publicly available information nor how it used that information. As a general proposition, publicly available information is not exempt information under section 20 either as a class of documents or under the “harm’s” test. It requires compelling evidence to dislodge the logical conclusion that information in the public domain will be used, particularly by knowledgeable users. AstraZeneca’s evidence is at best speculative.

 

[99]           Phelan J. relied on the Federal Court of Appeal decision in Cyanamid Canada Inc. v. Canada (Minister of Health and Welfare) (1992), 45 C.P.R. (3d) 390, in which Mr. Justice Stone wrote the following, at page 403:

. . . An alternative argument is advanced under s. 20(1)(c). The appellant submits that although information may be publicly available, it is not available from a single source. However, if access were granted under the Act it would confer an advantage upon the requester by saving him time and expense of collecting that information from several other public sources and enable him to construct the "larger picture" to the detriment of the appellant. I am not persuaded by this argument. . . .

 

 

[100]       Recently, in AstraZeneca Canada Inc. v. Canada (Health), 2006 FCA 241, the Federal Court of Appeal upheld the decision by Phelan J. Following that decision, this Court allowed the parties to make further representations.

 

[101]       With the exception of the pages noted at paragraph 104 of these reasons, and like Phelan J., this Court, too, is not satisfied by the applicant’s arguments on this point, and finds that the applicant has not discharged its onus of sufficiently establishing probability of harm that would be caused by the disclosure of records containing information already available in the public domain.

 

[102]       After considering the records concerned in the present application for judicial review, as well as the arguments by the parties and the applicable principles found in caselaw and legislation, this Court finds as follows:

 

[103]       The pages concerning which disclosure should be refused according to Mr. Sarrazin, the applicant’s affiant, since they contain information that was not available “as such” in the public domain are not excluded under paragraph 20(1)(c) of the Act. According to the charts filed by the parties, these records consist of pages 105 to 110, 135 to 142, 222 to 235, 342 to 355, 523, 530 to 531, and 537.

 

[104]       However, disclosure should be refused under paragraph 20(1)(c) of the Act with regard to records containing information that is more specific or more detailed than information available in the public domain. According to the charts filed by the parties, these records consist of pages 33 to 34, 117, 146 to 148, 170 to 173, 179 to 196, 204 to 208, 210, 212 to 213, 217 to 220, 236 to 327, and 399.

 

[105]       Disclosure of pages 462 to 493, 495, and 518 to 521 should be refused under paragraph 20(1)(a) of the Act since these pages contain information that constitutes a trade secret.

 

[106]       Disclosure of pages 14 (the reference to the percentage), 33 to 34, 117, 147 (the last three lines), and 207 should be refused under paragraph 20(1)(b) of the Act since these page contain confidential information that was treated in a confidential manner by the applicant and is not available in the public domain.

 

[107]        Disclosure of pages 33 to 34, 117, 146 to 148, 170 to 173, 179 to 196, 204 to 208, 210, 212 to 213, 217 to 220, 236 to 327, 399, and 527 should be refused under paragraph 20(1)(c) of the Act since these pages contain information the disclosure of which could reasonably be expected to result in material financial loss or gain to the applicant or prejudice its competitive position.

 

[108]       Except where a specific passage from a page has been noted (see the examples at paragraph 107 of these reasons), the page should be deleted in its entirety under section 25 of the Act since, in this Court’s opinion, it would be very difficult to separate information the disclosure of which should be refused.

 

[109]       The remaining records that are the subject of the present access request may be disclosed, without the passages deleted by the respondent in Exhibit “Q” of the September 26, 2001 confidential affidavit of Margery Snider, since subsection 20(1) of the Act does not apply to them.

ORDER

 

THE COURT ORDERS that the present application for judicial review be allowed in part, in accordance with the present reasons. Given the result of the proceeding, without costs.

 

“Michel Beaudry”

 

 

Certified true translation

Susan Deichert, Reviser

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          T-90-01

 

STYLE OF CAUSE:                          MERCK FROSST CANADA LTD.

                                                            v. THE MINISTER OF HEALTH OF CANADA

 

PLACE OF HEARING:                    Montréal, Quebec

 

DATE OF HEARING:                      April 24, 25, 26 and 27, 2006

 

REASONS FOR DECISION

AND DECISION BY:                       The Honourable Mr. Justice Beaudry

 

DATED:                                             October 12, 2006

 

 

APPEARANCES:

 

Karl Delwaide                                                              FOR THE APPLICANT

Karine Joizil

 

Sébastien Gagné                                                           FOR THE RESPONDENT

 

 

SOLICITORS OF RECORD:

 

Karl Delwaide                                                              FOR THE APPLICANT

Montréal, Quebec

 

John H. Sims, Q.C.                                                      FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario