[1] Despite the able arguments of Mr. Rubin, we have not been persuaded that Nadon J. (as he then was) erred in dismissing his application for judicial review under the Access to Information Act, R.S.C. 1985, c. A-1.

[2] On appeal, Mr. Rubin makes three arguments. The first relates to the confidentiality of a research study of a Professor Josefsson. In response to a request from the Minister of Health, Professor Josefsson confirmed that his study was confidential. Apparently, Professor Josefsson did not respond to a second inquiry from the Minister about confidentiality made about five months later, after the judicial review application was filed. Mr. Rubin says that without that response, the Minister could not continue to maintain the confidentiality of the research study.

[3] Mr. Rubin's position is not supported by the provisions of the Access to Information Act. Nothing in the Act specifies how, or how many times, a third party must assert confidentiality in order that it be maintained. In this case, Professor Josefsson's initial response asserted confidentiality. There is nothing in the record that suggests that his failure to respond to a subsequent communication meant that his study was not treated consistently in a confidential manner, as required by paragraph 20(1)(b) of the Act.

[4] Mr. Rubin's second argument is that, under paragraph 20(1)(b), the Minister had an obligation to independently verify that third party claims of confidentiality were valid and that there had not been public disclosure of information claimed to be confidential. We agree that the burden is on the Minister to provide evidence that there has not been public disclosure of information sought to be kept confidential. Whether the Minister has satisfied her burden is a question of mixed fact and law to be determined by the Trial Division Judge hearing the application. In this case, the Minister submitted evidence that, on the basis of submissions from third parties, she considered the information to be confidential. The Trial Division Judge is entitled to considerable deference with respect to findings of mixed fact and law, absent an extricable legal error. Barring a palpable and overriding error, this Court will not interfere with a finding of mixed fact and law by a Trial Division Judge under the Access to Information Act.

[5] In this case, Nadon J. accepted the evidence provided by the Minister as satisfying her burden of demonstrating that the information in question was confidential. In another case or in other circumstances, additional evidence might be required. However, there was no palpable or overriding error in this case in Nadon J. relying on the evidence submitted by the Minister and concluding that no further evidence was required.

[6] Mr. Rubin's third argument is that the exercise of discretion to disclose confidential information in the public interest under subsection 20(6) must be done objectively. The import of this argument is that the exercise of discretion under subsection 20(6) is circumscribed by various conditions that the Minister must satisfy in order to demonstrate that the public interest does not merit disclosure.

[7] There is no authority for such an interpretation of subsection 20(6). Subsection 20(6) confers on the head of the government institution the authority to exercise his or her discretion to disclose, inter alia, otherwise confidential information if such disclosure would be in the public interest as it relates to public health. Nothing in subsection 20(6) expresses or implies specific conditions or requirements that attach to or fetter that exercise of discretion. Generally, a discretionary decision requires that regard be had to relevant considerations and not to irrelevant considerations, that it be in accordance with relevant law and that there be compliance with principles of natural justice. There has been no demonstration here that there has not been adherence to these well-known considerations. There was public and confidential evidence upon which the decision not to disclose was based. There was no failure to adhere to relevant statutory provisions in the Act. Nor is there any argument about a denial of natural justice within the context of proceedings under the Access to Information Act.

[8] The Minister asked that the Court deal with a finding by Nadon J. that the Minister was not entitled to rely on paragraph 13(1)(a) of the Act in respect of a particular document received from the Government of Australia. Mr. Rubin suggested that, at one point, the Minister chose to rely on paragraph 13(1)(a) in respect of that document and, in doing so, ceased to rely on section 20 for its confidentiality. After hearing from counsel for the Minister, the Information Commissioner and Mr. Rubin, we are satisfied that confidentiality in the document in question was claimed under paragraph 20(1)(b) by the Minister throughout and its reliance on paragraph 20(1)(b) was never withdrawn.

[9] Mr. Rubin suggested that foreign governments could not be third parties under section 20, but we find nothing in that section that would indicate that it should be read as narrowly as he submits. The definitions of "third party" and "government institutions" in the Act do not indicate that a foreign government cannot be a third party under section 20. While foreign governments are expressly referred to in section 13, there is no reason why, in appropriate circumstances, they may not also be third parties under section 20.

[10] As the Minister need not rely upon section 13 in this case, we do not find it necessary to deal with Nadon J.'s finding in respect of section 13 and we make no comment on his analysis in this respect.

[11] The appeal will be dismissed. There will be no order as to costs.

"Marshall Rothstein"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-575-01

STYLE OF CAUSE: KEN RUBIN v. MINISTER OF HEALTH

PLACE OF HEARING: Ottawa, Ontario

DATE OF HEARING: January 23, 2003

REASONS FOR

JUDGMENT OF THE

COURT: (Rothstein, Sexton and Evans JJ.A.)

RENDERED FROM THE

BENCH BY: ROTHSTEIN J.A.

APPEARANCES:

Mr. Ken Rubin ON HIS OWN BEHALF

Mr. Christopher Rupar FOR THE RESPONDENT

Mr. Daniel Brunet FOR THE INTERVENER

Ms. Emily McCarthy

SOLICITORS OF RECORD:

Mr. Ken Rubin ON HIS OWN BEHALF

Ottawa, Ontario

Mr. Morris Rosenberg FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario

The Information Commissioner FOR THE INTERVENER

Ottawa, Ontario

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Rubin v. Canada (Minister of Health), 2003 FCA 37

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2003 FCA 37