Wyeth Ayerst Canada Inc. v. Canada (Attorney General), 2002 FCT 133

Date: 20020205

Docket: T-19-00

Neutral Citation: 2002 FCT 133

BETWEEN:

WYETH-AYERST CANADA INC.

Applicant

-and-

ATTORNEY GENERAL OF CANADA

Respondent

                                       REASONS FOR ORDER AND ORDER

HENEGHAN J.

INTRODUCTION

[1]                 Wyeth-Ayerst Canada Inc. (the "Applicant") seeks judicial review of a decision by the Minister of Health (the "Minister") to release information pursuant to a request made under the Access to Information Act, R.S.C., 1985, c. A-1 (the "Act"). The application is made pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7.

[2]                 The Applicant sought and obtained a Confidentiality Order on February 15, 2001, pursuant to the Federal Court Rules, 1998, SOR/98-106. That Order was broadly interpreted by the Applicant to cover all affidavits and materials filed by it in connection with this proceeding. The Confidentiality Order was not amended and the Applicant did not file a public Application record. The Application was heard in camera, in accordance with the Order of February 15, 2000.

[3]                 In light of these circumstances the following Reasons will say little about the underlying facts which are known to the parties, in any event. Where necessary, reference will be made to the public Application Record filed by the Respondent.

FACTS

[4]                 The Applicant is a pharmaceutical company which produces a natural-source hormone replacement therapy which is sold under the registered trade-mark "Premarin". The principal active ingredients of Premarin are a family of hormones known as "conjugated estrogens".

[5]                 The drug contains estrone, equilin and 17µ-dihydroequilin with smaller amounts of 17µ-estradiol, equilenin, and 17µ-dihydroequilenin as salts of their sulfate esters.

[6]                 Competitors produce other estrogen products which contain the same two main components, that is sodium estrone sulfate and sodium equilin sulfate. The following competitors produce products containing estrogens but which are derived from different sources than Premarin:

[7]                 On November 29, 1997, Health Canada gave notice of proposed Regulations to amend the Regulations under the Food and Drugs Act, R.S., c. F-27, s. 1 which relate to conjugated estrogens (the "proposed regulations"). The effect of the proposed regulations is to create a single standard applicable to both natural and synthetic source conjugated estrogen products.

[8]                 The publication of the proposed regulations notified the public of an opportunity to make representations concerning same. The Applicant responded to the invitation to make submissions. Those submissions are the subject of this application for judicial review.

[9]                 Subsequently, on June 22, 1999, the Access to Information and Privacy Office of Health Canada (the "Office") received a request pursuant to the Act for a copy of information received since 1997 concerning conjugated estrogen, schedule 873. More specifically, the request related to the following:

           -           all internal memos

           -           all correspondence, except ICN correspondence

           -           all minutes and notes of meetings

           -           all electronic data concerning Schedule 873 including all advice from the Health Protection Branch to the Minister

           -          all ministerial correspondence

           -           and all comments in response to the Canada Gazette, Part I publication over the last two years.

[10]            Upon receipt of this request, Health Canada contacted the Applicant and advised that its submissions were considered responsive to the request for information, but that they may be subject to section 20(1) of the Act. On December 13, 1999 the Applicant was advised in writing by Health Canada that some of the information which is of concern to it would be released.

[11]            Following receipt of this letter, the Applicant made representations to the Office, disputing the proposed release of the information.

[12]            The Applicant's submissions were considered and on December 19, 1999, a further letter was issued from the Office, advising that the time limited to seek judicial review of the decision would expire on January 10, 2000. In other words, the Office did not change its position concerning release of the requested information.

[13]            While the identity of the requesting party has not been disclosed, the Applicant has "expressed its concern" that ICN Canada Ltd., a competitor of the Applicant and a producer of conjugated estrogens product is the party seeking the information. The Applicant has no solid information about the identity of the requesting party.

[14]            The request of June 22, 1999 was not the first one received by the Office relative to conjugated estrogens. According to the Respondent, the following requests were received by the Office:

1.         Request 96-A-164;

           2.         Request 97-A-122;

           3.         Request A-1999-0380;

           4.         Request A-1999-0630;

           5.         Request A-1999-0668; and

           6.         Request A-1999-0863.

[15]            Requests 96-A-164 and 97-A-122 were made by the same requester involved in the present request, A-1999-0281, together with another third party.

ISSUES

[16]            Two issues are raised by the Applicant in this application. The first relates to the status of the requesting party. The Applicant argues that there is no evidence that the party requesting release of the information is one described in section 4(1) of the Act or otherwise qualified to receive that information.

[17]            Secondly, the Applicant relies on the exemptions provided in section 20(1) of the Act as a basis for non-disclosure of the information in question.

APPLICANT'S SUBMISSIONS

[18]            As noted above, the Applicant raises a preliminary issue as to the eligibility of the requesting party for receipt of the information.

[19]            Secondly, the Applicant claims the benefit of section 20(1) of the Act, that is the exemption from disclosure of information which is of a confidential nature to the Applicant. The Applicant specifically claims exemption under each subsection of section 20(1) and asserts confidentiality, under all branches of section 20(1), in the requested material.

[20]            Briefly put, the Applicant claims that it would be commercially disadvantaged by the release of the requested material since that material could provide a perceptive competitor with access to commercial information, trade secrets, commercial strategy and the like, owned by the Applicant.

[21]            In denying the Applicant's request for non-disclosure of the information, the Office took the position that the information was not confidential and in any event certain information was already in the public domain, including information which had been released in response to previous requests for disclosure.

[22]            The Applicant now argues that the conclusion about certain documents being in the public domain was erroneous and that there has been a misapprehension about the confidential nature of the Applicant's materials.

RESPONDENT'S SUBMISSIONS

[23]            The Respondent argues from the perspective that the basic principle of the Act is to provide the public with a right to access to information and says that this has been interpreted by this court to mean that public access ought not be frustrated by the courts except in the clearest circumstances, with the burden of persuasion lying upon the party seeking non-disclosure. The Respondent submits that the burden of proof upon a party relying on section 20(1) is that of the balance of probabilities.

[24]            In response to the preliminary argument as to the eligibility of the requesting party to obtain disclosure, the Respondent relies on the confidential Affidavit of M. Snider, an Officer with the Office, who has provided sworn evidence, untested by cross-examination, stating that the requester was eligible under the Act to make the request. Since this evidence was untested by cross-examination, the Respondent submits that it should be accepted without qualification by the Court and that the Court should accept the determination by Ms. Snider that the requesting party is eligible to receive information requested under the Act.

[25]            Turning to the substantive arguments raised by the Applicant in relying on section 20(1), the Respondent addresses each exemption in turn. With respect to section 20(1)(a), the Respondent argues that the term "trade secrets" is subject to a reasonably narrow interpretation.   

[26]            A trade secret must be something likely of a technical nature which is guarded very closely and is of such particular value to the owner that harm is presumed by its mere disclosure; see Société Gamma Inc. v. Canada (Secretary of State) (1994), 79 F.T.R. 42 at 45.

[27]            The Respondent argues that the affidavit filed by the Applicant provides no evidence to support the contention that the information in dispute is a trade secret within the meaning of section 20(1)(a).

[28]            The Respondent also argues that the Applicant has not established entitlement to an extension pursuant to section 20(1)(b). Here the Respondent relies on the decision in Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 F.T.R. 194 at 207 where the court identified the factors necessary to allow an exemption under section 20(1)(b). The Respondent says that the affidavit material filed by the Applicant fails to meet any of these criteria.

[29]            The Respondent argues that the test for application of the exemptions in sections 20(1)(c) and (d) is that of a "reasonable expectation of public harm". It is not necessary to show a direct causal link between disclosure and the cause harmed. Again, the Respondent argues that the Applicant has failed to produce any substantial evidence that there is a reasonable expectation of probable harm if the documents in issue are released.

[30]            With respect to section 20(1)(d), the Respondent argues that "interference" with future business dealing is used to mean "obstruct". The Respondent says the Applicant must show that there is a probability, not a mere possibility, that disclosure of the information might interfere with its contract or other negotiations. The Applicant must show an obstruction in the actual contractual negotiations, not merely an increase in competition that may result from the disclosure of the information.

[31]            The Respondent says that the affidavit evidence put forth by the Applicant fails to support the Applicant's claims. Furthermore, the Respondent submits that much of the information sought to be protected by the Applicant has already been publicly released either in the responses to other requests under the Act or in publicly available documents including publications by the Health Canada and the American Food and Drug Administration ("U.S.F.D.A.").

ANALYSIS

[32]            Two issues arise from this application. The first relates to the standing of the requester to bring its application for release of the information. The second relates to the decision by the Respondent to release the information which was requested, notwithstanding the objections raised by the Applicant.

[33]            The Applicant argues that the Respondent bears the burden of establishing that the person requesting access to the information is entitled to have access. The Applicant submits that the request was made by a competitor for the purpose of gaining access to confidential information, and that this motivation should be taken into account in determining whether the information should be released.

[34]            Section 4(1) states that every person who is a Canadian citizen has a right to government information on request. This right was later extended, by extension order number 1 SOR/89-206, to all individuals or corporations present in Canada.

[35]            According to the affidavit of Ms. Snider filed by the Respondent, the officer handling the request addressed her mind to the eligibility of the requester and concluded that the requester was eligible under the Act to make the request.

[36]            In my opinion, this determination was carried out by the person responsible for making it. There is no evidence to show that irrelevant or improper factors entered into her consideration of the eligibility of the requester. The Applicant has failed to show that this determination fails to meet the "sufficiency of the proof" discussed by the Federal Court of Appeal in Cyanamid Canada Inc. v. Canada (Minister of National Health and Welfare) (1992), 45 C.P.R. (3d) 390 (F.C.A.) at 399-400.

[37]            I turn now to the substance of this application. The purpose of the Act is set out in section 2(1) as follows:

2. (1) The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government

2. (1) La présente loi a pour objet d'élargir l'accès aux documents de l'administration fédérale en consacrant le principe du droit du public à leur communication, les exceptions indispensables à ce droit étant précises et limitées et les décisions quant

à la communication étant susceptibles de recours indépendants du pouvoir exécutif.

[38]            This basic principle has been interpreted to mean that public access to information ought not be frustrated by the courts except in the clearest of circumstances and the burden of persuasion in this regard rests upon the party resisting disclosure; see Maislin Industries Limited v. Canada (Minister for Industry, Trade and Commerce, [1984] 1 F.C. 939 at 943. The burden of proof required to establish an exemption from disclosure is that of the balance of probabilities; see Tridel Corp. v. Canada Mortgage and Housing Corp. (1996), 115 F.T.R. 185 at 196 (F.C.T.D.).

[39]            In Canada (Information Commissioner) v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 384 (F.C.T.D.), Justice Dawson described the applicable standard of review to the exercise of the Minister's discretion to disclosure information. At page 407 she wrote as follows:

In Dagg, in this respect, the majority of the Supreme Court commented as follows, at paragraph 16:

Second, in light of the conclusion that the information must be disclosed, it is not necessary for me to consider whether the Minister erred in his exercise of the discretion conferred upon him pursuant to s. 19(2) of the Access to Information Act and s. 8 of the Privacy Act. In general, I agree with La Forest J.'s conclusion that a Minister's discretionary decision under s. 8(2)(m)(i) is not to be reviewed on a de novo standard of review. Perhaps it will suffice to observe that the Minister is not obliged to consider whether it is in the public interest to disclose personal information. However in the face of a demand for disclosure, he is required to exercise that discretion by at least considering the matter. If he refuses or neglects to do so, the Minister is declining jurisdiction which is granted to him alone.

[40]            The Applicant claims the benefit of the exemptions contained in section 20(1) of the Act, which provides as follows:

[41]            The general thrust of the Applicant's argument is that the documents in question, for which it seeks to prevent disclosure, were released by it in error to the Minister. Moreover, the Applicant argues that the documents are intrinsically confidential, commercial information amounting to trade secrets, the disclosure of which would cause harm to the Applicant and interfere with future contractual and other negotiations.

[42]            As noted above, the burden of proof in establishing entitlement to an exemption pursuant to section 20(1) is the balance of probabilities. That onus rests with the Applicant at all times. In this case, the Applicant seeks to discharge that burden by providing affidavit evidence.

[43]            In my opinion, the affidavit evidence which has been filed does not meet the test. The affidavits are framed in very general language and furthermore, are said to be based on belief.

[44]            The present proceeding is an application for judicial review, not a motion. As such, an affidavit based on belief is not proper evidence; see Federal Court Rules, 1998, supra, rules 81(1) and (2). The affidavit based on personal belief of a representative of the Applicant who could reasonably be expected to have personal knowledge about the matters in issue, is insufficient and does not meet the test.

[45]            When an applicant seeks to invoke the section 20(1) exemption, it must provide clear evidence that the facts of its case fall within one or more of the exemptions named in that provision. When an applicant relies on confidentiality as the basis for exemption for disclosure, that confidential basis must be objectively shown. In this regard, I refer to Maislin, supra at page 944.

[46]            In Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services) (1990), 107 N.R. 89 at 91 (F.C.A.), the Federal Court of Appeal considered paragraphs (c) and (d) of section 20(1) and concluded that a party seeking to prevent disclosure pursuant to these provisions must establish the probability of harmful consequences.

[47]            In the present case, the affidavits filed by the Applicant provide no more than speculation as to probable harm. The affidavits provide only general statements which, in my opinion, amount merely to bald assertions unsupported by any evidence as to the likelihood of "material financial loss".

[48]            In order for the Applicant to succeed pursuant to section 20(1)(d) it must show an obstruction in the actual contractual negotiations, as discussed in Société Gamma, supra at page 47. The evidence presented by the Applicant is lacking in this regard and is insufficient to support a finding under this section.

[49]            In any event, it appears that much of the information sought to be withheld by the Applicant is already in the public domain, either as the result of prior disclosures made by the office or pursuant to disclosures made in relation to the pharmaceutical industry, both in Canada and the United States. I refer to the public affidavit of M.J. Bujaki which demonstrates that there are many documents on the public record concerning conjugated estrogens, including publications issued by Health Canada and the U.S.F.D.A. The public availability of these materials undercuts the Applicant's broadly based claim for confidentiality.

Reference: Respondent's Public Application Record, pages 26-177

[50]            As an alternative remedy, the Applicant seeks redaction of the documents in issue to limit the information that will be disclosed. Section 25 of the Act provides for such limitation as follows:

[51]            I reject this argument. I have already concluded that the documents in question are not confidential in nature and do not otherwise fall within the exemptions identified in section 20(1). Since they are not entitled to be withheld on the basis of section 20, I see no ground for limiting an authorized disclosure by ordering redaction of the documents.

[52]            Finally, I refer to section 20(6) of the Act which provides as follows:

20(6) The head of a government institution may disclose any record requested under this Act, or any part thereof, that contains information described in paragraph (1)(b), (c) or (d) if that disclosure would be in the public interest as it relates to public health, public safety or protection of the environment and, if the public interest in disclosure clearly outweighs in importance any financial loss or gain to, prejudice to the competitive position of or interference with contractual or other negotiations of a third party.

20(6) Le responsable d'une institution fédérale peut communiquer, en tout ou en partie, tout document contenant les renseignements visés aux alinéas (1)b), c) et d) pour des raisons d'intérêt public concernant la santé et la sécurité publiques ainsi que la protection de l'environnement; les raisons d'intérêt public doivent de plus justifier nettement les conséquences éventuelles de la communication pour un tiers_: pertes ou profits financiers, atteintes à sa compétitivité ou entraves aux négociations qu'il mène en vue de contrats ou à d'autres fins.

[53]            This section allows the release of information which might otherwise be protected under section 20 if the public interest so requires. However, the public interest has not been invoked by the Respondent in this case and it is not an issue.

[54]            In conclusion, I find that the Applicant has not established that it is entitled to an exemption against disclosure pursuant to section 20(1). The application is dismissed with costs to the Respondent.

                                                  ORDER

The application is dismissed with costs to the Respondent.

                 "E. Heneghan"

                                                                                                      J.F.C.C.                      

OTTAWA, Ontario

February 5 , 2002