Date: 20061012

Docket: T-36-02

Citation: 2006 FC 1200

Ottawa, Ontario, October 12, 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. 1985, c. A-1 (“the Act”) of a December 19, 2001, decision by the Respondent concerning the disclosure of documents pertaining to a Supplemental New Drug Submission (SNDS) for SINGULAIR® (Singulair), a drug developed by the Respondent for the treatment of asthma.  The Applicant is seeking from the Court an order declaring illegal the process followed by the Respondent in handling the access request and an order under subsection 20(1) of the Act prohibiting the disclosure of the documentation covered by the decision being challenged.

 

I.          Issues

[2]               The issues raised by the parties are the following:

1. Is the Applicant entitled to a declaratory order with respect to the illegality of the process followed by the Respondent in handling the access request?
2. In the affirmative, was the process followed by the Respondent in handling the access request in compliance with the Act?
3. Was the Respondent’s decision to disclose the documents referred to in the access request covered by one of the exceptions provided for in subsection 20(1) of the Act?

 

II.        Facts

[3]               On May 7, 2001, the Respondent received from a third party (the third party Applicant) an access request under section 4 of the Act concerning the documentation pertaining to the Singulair SNDS.

 

[4]               A “new drug submission” (NDS) is the method provided for by the Food and Drug Regulations, C.R.C. c. 870 (ss. C.08.001 et seq.) when a drug company wants to sell a new drug.  The applicant drug company includes in the NDS a research and development outline on the drug in question in an effort to demonstrate its effectiveness, safety and quality for approval by Health Canada.

 

[5]               An SNDS is the procedure followed to request an authorization to sell a drug for which there has already been an NDS (and which has already been approved) and to which changes have been made.  The SNDS is based on the NDS, but includes additional pre-clinical, clinical or manufacturing information specific to the desired changes.

 

[6]               The request covered the following information:

All releasable information on 4 mg SINGULAIR® which was filed as a Supplemental New Drug Submission, including correspondence and the reviewer’s notes.

 

 

[7]               Margery Snider, an officer in the access to information coordination section of the Department of Health, assembled 305 pages of documentation.  The documents were then sent to two Proprietary and Scientific Information Assessment officers in the Therapeutic Products Directorate of the Health Products and Food Branch so that they could make recommendations regarding the documents covered by the request.

 

[8]               The two Proprietary and Scientific Assessment officers reviewed the documents and on June 8, 2001, submitted recommendations regarding the information in the documents that should not be disclosed under subsection 20(1) of the Act.

 

[9]               They also made recommendations concerning the documents they felt were likely to be disclosed directly to the third party because they were not covered by any of the exceptions provided for in the Act.

 

[10]           On June 11, 2001, the Respondent’s representatives suppressed a few passages from the documentation because they believed subsection 20(1) of the Act applied.

 

[11]           Also on June 11, 2001, Ms. Snider sent the Applicant a notice to the third party Applicant under section 27 of the Act.  Accompanying the letter were the 305 pages of documents that Health Canada had identified as meeting all or part of the access to information request.  Ms. Snider asked the Applicant to provide her with representations as to any reasons that would warrant a refusal to disclose some or all of the documents under subsection 20(1) of the Act within 20 days following the date of the notice.

 

[12]           Pending the Applicant’s representations in response to the notice given under section 27 of the Act, the Respondent refrained from directly disclosing most of the documentation to the third party.

 

[13]           However, on June 11, 2001, eight pages of documentation were disclosed without notice to the Applicant, as the Respondent felt that none of the exceptions applied to the pages in question.

 

[14]           The Applicant was granted an extension to July 20, 2001 to reply.

 

[15]           On June 15, 2001, the Applicant learned that eight pages of documents had been sent directly to the third party Applicant without notice to the Applicant.

 

[16]           On July 20, 2001, the Applicant responded to the Respondent’s notice.  The highlights of the Applicant’s representations can be summarized as follows:

-         the Applicant objected under subsection 20(1) of the Act to the disclosure of any of the documentation sent to it on June 11, 2001, and to the disclosure of eight pages sent to the third party Applicant without notice;

-         the Applicant objected to the process followed by the Respondent in his initial handling of the access request on the grounds that it was not in compliance with the Act; the Applicant argued that subsection 20(1) imposed on the Respondent a duty to conduct a genuine and thorough review of the documentation instead of sending it in bulk to the Applicant so that the Applicant had to do that task in a very short period of time.

 

[17]           The Respondent received from the Applicant an annotated copy of the documentation sent on June 11, 2001, containing the Applicant’s recommendations regarding the application of subsection 20(1) of the Act.

 

[18]           The annotated documentation and the July 20, 2001, letter were sent to the Proprietary and Scientific Information Assessment officers, who analysed them.

 

[19]           On October 2, 2001, the Applicant received from the Respondent a letter conveying his decision to follow some of the Applicant’s recommendations.  The Respondent attached a copy of the newly expurged documents thereto.

 

[20]           However, the Respondent also informed the Applicant that several of its representations were not specific or detailed enough to warrant the suppression of the rest of the documentation under subsection 20(1).

 

[21]           Under an agreement with the Respondent, the Applicant was given another date –October 31, 2001 – by which to complete a review of the documentation attached to the October 2, 2001, letter from Health Canada.

 

[22]           On October 31, 2001, the Applicant replied to the Respondent’s letter of October 2, 2001.  In that reply, the Applicant set out the reasons why it objected to the disclosure of the remaining information in the documentation.

 

[23]           Attached to the Applicant’s October 31, 2001 letter were:

a)         a letter dated October 29, 2001 to the Applicant from a consulting firm the Applicant had hired;

            b)         a table summarizing the Applicant’s objections; and

            c)         a highlighted copy of the documentation setting out the Applicant’s detailed objections.

 

[24]           On December 19, 2001, the Respondent issued his decision under subsection 28(3) of the Act.  He informed the Applicant of his intent to disclose some of the documentation covered by the request.

 

[25]           Accompanying the December 19, 2001 letter was the documentation newly expurged by the Respondent subsequent to the Applicant’s observations contained in its letter of October 31, 2001.

 

[26]           In his letter of December 19, 2001, the Respondent stated that he accepted some of the representations made by the Applicant and that the information was suppressed accordingly.  However, the Respondent expressed the view that section 20 of the Act did not apply to the remaining information in the documentation.

 

[27]           On January 8, 2002, the Applicant filed this application for judicial review challenging the decision of December 19, 2001.

 

[28]           The Applicant took the position that only the following pages of the expurged documents shown as Exhibit “U” in Margery Snider’s confidential affidavit of July 17, 2002, remain in dispute: pages 7‑16, 24‑33, 35, 39‑42, 43‑46, 48‑54, 57, 105‑115, 119‑121, 137‑167, 187‑188, 194‑198, 200, 202, 204‑246 and 296.

 

III.       Brief history of proceedings

A.        Federal Court

[29]           The Applicant and the Respondent were parties to a proceeding similar to this one in Federal Court (docket T-90-01) pertaining to the NDS for Singulair.

 

[30]           This application for judicial review was first 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).

 

[31]           Mr. Justice Harrington allowed the application for judicial review in part and held that the Respondent was compelled by subsection 20(1) to refuse to disclose the comprehensive summary, the reviewer’s notes and the correspondence.  He held that even though some of the information contained in those three parts of the documentation was in the public domain in another form, it was not available “as such” and therefore remained confidential.

 

[32]           He determined, however, that the disclosure of the notice of compliance did not contravene subsection 20(1) of the Act and that the Respondent had the right to disclose the notice directly to the third party Applicant without consulting the Applicant.

 

[33]           He also held that the Respondent should not have disclosed certain documents to the third party Applicant without prior notice to the Applicant and that the Applicant was entitled to a declaratory order to that effect.

 

B.         Federal Court of Appeal

[34]           The Federal Court of Appeal reversed Mr. Justice Harrington’s order (Merck Frosst Canada & Co. v. Canada (Minister of Health), 2005 FCA 215, [2006] 1 F.C.R. 379).

 

[35]           Writing for the Court, Mr. Justice Desjardins held that Mr. Justice Harrington made an error of law at paragraph 53 of his reasons where he held that, in order for the documentation in question to lose its confidential status, it had to be found as such in the public domain.

 

[36]           The Court of Appeal held that the confidentiality of information protected by paragraph 20(1)(b) stems from the pith and substance, not the form, of that information.  Once information is in the public domain, its ceases to be confidential, irrespective of any differences between the form it takes in the documentation a federal institution has in its possession and documentation that is in the public domain.

 

[37]           The Court of Appeal also ruled that the reviewer’s notes could not be protected by paragraph 20(1)(b) of the Act because they emanated from the Respondent and paragraph 20(1)(b) protects only documentation emanating from the third party Applicant involved in the application.

 

[38]           Finally, the Court of Appeal referred the matter 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 on the basis of Court of Appeal’s reasons.

 

IV.       Relevant legislation

[39]           The relevant provisions of the Act are:

 

V.        Arguments of the parties

1.                  Is the Applicant entitled to a declaratory order about the legality of the process followed by the Respondent in handling the access request?

[40]           The Applicant challenged two elements of the process followed by the Respondent in handling the access request.  It objects first of all to the June 11, 2001 decision to disclose documents to the third party Applicant without prior consultation.  It also objects to the fact that the Respondent imposed on it the onus of showing why disclosure of the documents should be refused under subsection 20(1) without having conducted its own genuine and thorough review of the documentation before issuing the notice under section 27.

 

A.        Decision of June 11, 2001

(1)        Respondent

[41]           The Respondent contended that his decision of June 11, 2001 is not reviewable by this Court.

 

[42]           On a procedural level, the Respondent argued that the June 11, 2001 decision, even though it related to the same access request, is distinct from the December 19, 2001 decision that is challenged herein.

 

[43]           According to the Respondent, the Applicant is seeking judicial review of two decisions in a single application, in violation of 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.”

 

[44]           The Respondent also contended that the Applicant is entitled to judicial review only as a result of a notice given under section 28 of the Act.  Since no notice was given to the Applicant under section 28 in respect of the June 11, 2001 decision, the Applicant cannot seek judicial review of that decision under section 44.

 

[45]           The Respondent further argued that even if this Court had the necessary jurisdiction to hear an application for judicial review under section 44 of the Act of the June 11, 2001 decision, the application for judicial review filed by the Applicant is definitely out of time.  The Respondent noted that the Applicant did not file a motion for an extension of time and did not offer any explanation for the delay.

 

[46]           Also on a procedural level, the Respondent argued that section 51 of the Act does not allow this Court to make a declaratory order against the June 11, 2001 decision.  Section 51 provides that the Court cannot make such an order unless it first determines that the applicant is required to refuse to disclose the documentation.  The Respondent contended that the disclosure of these documents is not precluded by subsection 20(1) of the Act.

 

[47]           On the merits, the Respondent claims that this Court should not rule on the legality of the June 11, 2001 decision because the documents have already been disclosed to the third party Applicant.  The proceeding would be moot.  A declaratory order on the legality of that decision would have no practical effect on the parties and would be of no use for future disputes.

 

(2)        Applicant

[48]           The Applicant stated that it wanted to prevent further occurrences of such disclosure without notice and argued that the remedy provided for in section 44 of the Act is the only remedy available to it.  It stated that a declaratory order on the legality of the June 11, 2001 decision would be very useful because it would bind the Respondent in his handling of access requests and in the process of third‑party consultation.

 

[49]           If this Court determines that it is not entitled to a declaratory order on the legality of the June 11, 2001 decision, the Applicant is asking the Court to make an order the effect of which would be to prevent the Respondent from disclosing information contained in an SNDS without having first received the representations of the third party Applicant concerned, in accordance with section 27 of the Act.

 

[50]           The Court has noted the procedural arguments put forward by the Respondent.  However, a multiplication of decisions pertaining to the same access to information request would lead to a proliferation of third‑party actions opposing the disclosure of documents.  That would be at odds with rule 3 of the Federal Courts Rules, which provides that:

 

 

 

[51]           Moreover, while this proceeding is moot since disclosure has already occurred, the issues are serious enough; therefore, this Court should rule on the matter.

 

[52]           Therefore, I rule that the Applicant is entitled to a declaratory order about the illegality of the disclosure of documents without consultation on June 11, 2001.

 

B.         Process imposing on the Applicant the onus of showing that the Respondent should refuse to disclose documents pursuant to subsection 20(1) of the Act.

(1)        Respondent

[53]           The Respondent contended that judicial review of the legality of the decision-making process would be purely moot because an application for judicial review of a decision by an official of a federal institution under section 44 of the Act is heard de novo (Air Atonabee Ltd. (c.o.b. City Express) v. Canada (Minister of Transport), [1989] F.C.A. No. 453 (T.D.) (QL), Aliments Prince Foods Inc. v. Canada (Department of Agriculture and Agri-Food), [2001] F.C.A. No. 144 (F.C.A.) (QL), Bacon International Inc. v. Canada (Department of Agriculture and Agri-Food), [2002] F.C.A. No. 776 (T.D.) (QL)).

 

[54]           The Respondent argued that the role of this Court is to analyse the decision maker’s decision where the decision maker has determined, based on the evidence, whether any of the paragraphs of subsection 20(1) of the Act applied.  The Court thus does not have to determine the legality of the process that led to the December 19, 2001 decision.

 

[55]           The Respondent also repeated the arguments made in response to the previous point: under section 44 of the Act, the Applicant may only seek judicial review of the December 19, 2001 decision as to its substance, and section 51 does not allow this Court to make a declaratory order on the process, unless it first determines that the Respondent is required to disclose the documents covered by the access request.

 

[56]           Now, the Respondent argued that the December 19, 2001 decision was correct in view of the exceptions provided for in subsection 20(1) of the Act.

 

(2)        Applicant

[57]           According to the Applicant, the process followed by the Respondent was so irregular as to taint the validity of the December 19, 2001 decision, to the extent that it would be undesirable to endeavour to completely separate the decision-making process from the decision per se.  The phrase “review of the matter” in section 44 is, in the Applicant’s opinion, sufficiently broad to cover both the decision and the decision‑making process.

 

[58]           From a practical standpoint, the remedy provided for by section 44 is the only remedy available to the Applicant, and the Applicant contended that it would be in the interest of justice for this Court to review the process followed by the Respondent.  In spite of the de novo nature of this judicial review, this Court should enjoy full room to manoeuvre.

 

[59]           In response to the Respondent’s arguments regarding sections 44 and 51 of the Act, the Applicant stated that, since the December 19, 2001 decision was wrong in substance and the requirements of section 51 were met, there is nothing to prevent this Court from making a declaratory order in relation to the process which led to that decision.

 

[60]           Having examined at length the arguments put forward by the parties, I hold that it is unrealistic to view the process followed by the Respondent in handling a request as being completely separate from the substance of the final decision, to the extent that examination of the process is moot in an application for judicial review.

 

[61]           Given that this Court finds that some of the documents covered by the request should not be disclosed under subsection 20(1) of the Act, section 44 of the Act does not bar an examination of the process and the substance of the decision by this Court.

 

[62]           I therefore hold that the Applicant is entitled to a declaratory order about the legality of the process imposing on it the onus of showing that the Respondent was required to refuse to disclose the documents under subsection 20(1) of the Act.

 

2.         In this affirmative, was the process followed by the Respondent in handling the access request in compliance with the Act?

A.                 Decision of June 11, 2001

(1)        Applicant

[63]           The Applicant argued that the disclosure of documents by the Respondent without notice to the Applicant was a violation of the Act.

 

[64]           The Applicant relies on the word “shall” in subsection 27(1) of the Act to underscore what it perceives as the duty of the Respondent to consult.

 

[65]           The Applicant also reiterated that it never waived its right to be consulted as would have been possible under subsection 27(2) of the Act.

[66]           With regard to statutory interpretation, the Applicant contended that the intent of Parliament is clear.  Where a federal institution intends to refuse to disclose, no consultation is required under subsection 27(1).

 

[67]           In these circumstances, the rights of the Applicant are protected because there is no risk of disclosure.  However, if the federal institution intends to disclose any or all of the documentation, the Act and the principles of procedural fairness require that the Applicant be notified and given the opportunity to make representations.

 

[68]           If the Respondent discloses confidential documents within the meaning of paragraph 20(1)(b) of the Act, the loss of confidentiality of those documents causes irreparable harm to the Applicant and the Applicant challenges the Respondent’s position that the documents are not covered by subsection 20(1).

 

(2)        Respondent

[69]           The Respondent’s position is totally opposed to the Applicant’s.  According to the Respondent, subsection 27(1) of the Act clearly provides that such notice is not required unless the Respondent believes (“the head of the institution has reason to believe”) that the documents are likely to contain information covered by subsection 20(1).  In this case, the Respondent contended that, following the first review of the documents, he was satisfied that subsection 20(1) was not likely to apply and that no notice was therefore required.

 

[70]           The Respondent therefore argued that the evidence showed unequivocally that the documents disclosed on June 11, 2001 were not covered by subsection 20(1) of the Act.

 

[71]           In my view, it is hardly relevant to say that the documents disclosed without prior consultation are not covered by subsection 20(1) of the Act.  According to the interpretation of the Respondent, he would have the authority to determine that subsection 20(1) is not applicable, and that determination would not be reviewable and could cause irreparable harm to the third party affected by the access to information request.

 

[72]           I hold from this that the disclosure of documents by the Respondent without consultation was contrary to the economy of subsection 20(1) of the Act.  Given that such a process could cause irreparable harm to a third party, such as the Applicant, if the Respondent wrongly concluded that subsection 20(1) did not apply to the documents, disclosure without prior consultation should not have occurred.

 

B.                 Was the Respondent’s decision to disclose the documents referred to in the access request covered by one of the exceptions provided for in subsection 20(1) of the Act?

            (1)        Applicant

[73]           The Applicant contended that the process used by the Respondent was not consistent with the Respondent’s obligation under the Act to conduct a genuine and thorough review of the documentation before asking the Applicant to make its representations.

 

[74]           Now, having failed to observe its duty in that regard, the Respondent failed to meet its obligation by imposing an unreasonable burden on the Applicant and putting it in a position that makes it impossible to strike the balance sought by the Canadian law between access to information held by the government and bona fide protection of the strategic information, in particular research and development information, held by Canadian drug companies.

 

[75]           The Applicant contended that, after having received the access request, the Respondent did not conduct a research and a genuine analysis to determine whether the information requested regarding the SNDS could be exempted under subsection 20(1) of the Act.

 

[76]           According to the Applicant, the Respondent cannot circumvent its responsibilities by conducting a brief initial check and then requiring that the Applicant provide documentation that has been expurged page by page and word by word or face disclosure of the documentation if the representations are not sufficiently detailed.

 

[77]           The Applicant also contended that the process followed by the Respondent is contrary to the Treasury Board directive on the handling of access to information requests.

 

[78]           The Applicant claimed that that directive tend to confirm its interpretation of subsection 20(1).  The third‑party notice procedure described in section 27 is intended to quell any doubt by allowing the third party to “verify” the position of the government institution on what it intends to disclose.  The third party is then able to proceed with full knowledge and can rely on a genuine “first review” by the government institution.

[79]           The Applicant further argued that the process followed by the Respondent is at odds with the duty to act fairly because it consisted only in briefly reviewing the documentation, transferring it “in bulk” to the Applicant in order to obtain the Applicant’s representations, and then rejecting those same representations on the grounds that they were not sufficiently specific and detailed.

 

            (2)        Respondent

[80]           The Respondent submitted that the process that resulted in his December 19, 2001 decision was legal.

 

[81]           He contended that section 27 of the Act did not impose on the federal institution a greater onus than simply being satisfied that the document to be disclosed is likely to contain information covered by subsection 20(1).

 

[82]           The “genuine and serious” review requested by the Applicant at the initial stage was therefore not required by the Act.  As he was satisfied, following an initial review, that the documents he wanted to disclose were likely to contain information covered by subsection 20(1), the Respondent could rightly proceed with a notice under section 27.

 

[83]           The Respondent contended that the Act imposes on the third party in an access request the onus of showing that an institution is required to refuse to disclose the information under subsection 20(1) of the Act.

 

[84]           The requirement of specific representations warranting a refusal to disclose was not, according to the Respondent, capricious or illegal, because section 2 of the Act provides that exceptions to the right to disclosure of information should be “specific and limited”.

 

[85]           The Respondent contended that many of the representations made by the Applicant were insufficiently specific, mentioning a vague possibility of potential injury arising from disclosure of the documentation but not establishing specific and limited probability, of such injury.

 

[86]           Despite the strong arguments made by the Applicant on this point, I believe that the process which imposed on the Applicant the onus of showing that the Respondent was required to refuse disclosure of the documents under subsection 20(1) was not illegal.

 

[87]           Since disclosure is the rule and refusal to disclose the exception, the Respondent’s only duty was to identify the passages to which subsection 20(1) was likely to apply and then ask the Applicant to provide representations regarding the application of subsection 20(1) to all the documentation.

 

[88]           Obviously, the Applicant was in a better position than the Respondent and had greater expertise than the Applicant to identify passages of documentation covered by an access request to which subsection 20(1) of the Act would likely apply, because most of the documentation emanated from the Applicant.

 

[89]           That is one of the arguments made by the Applicant to support its submissions regarding the application of subsection 20(1) in response to the following question, which deals with the accuracy of the Respondent’s submissions regarding the application of subsection 20(1) to the documentation covered by the request. 

 

[90]           It cannot be denied that such a process imposed on a third party such as the Applicant an onus and a considerable amount of work when an access request is submitted and the time comes to make a determination on the application of subsection 20(1).  However, that onus is not out of proportion considering the greater expertise of the third party concerned and the importance it is likely to ascribe to the protection of information about it.

 

[91]           To summarize, the purpose of such a process is to impose on the Respondent a duty to consult the Applicant following a fairly brief review of the documentation, to consider the Applicant’s recommendations and, if he decides not to follow those recommendations, to explain why.  If the Applicant is not happy with the Respondent’s decision, it can apply under section 44 of the Act to have this Court review the Respondent decision.

 

[92]           It thus remains to review the Respondent’s decision de novo and determine whether the decision to disclose the documents covered by this application for judicial review was or was not in compliance with the Act.

 

3.         Was the Respondent’s decision to disclose the documents referred to in the access request covered by one of the exceptions provided for in subsection 20(1) of the Act?

(1)        Applicant 

[93]           The errors identified by the Applicant in requesting that the December 19, 2001 decision be set aside are:

-         The Respondent wrongly believed that, at the stage of initial processing of the request, the Applicant has the onus of making specific and detailed representations (see preceding point).

-         The Respondent’s agents applied paragraphs 20(1) (a), (b), (c) and (d) conjunctively, not disjunctively.

-         The Respondent took the view that the disclosure of certain documents could not cause injury if the information they contain is in the public domain in another form.  Even though the Federal Court of Appeal rejected a similar argument under paragraph 20(1)(b), the Applicant invoked that argument for certain documents because paragraph 20(1)(c) would apply.

-         The Respondent wrongly believed that the Applicant could not object to disclosure of the reviewer’s notes because they emanated from and were the property of the Applicant.

 

[94]           The Applicant submitted a detailed table listing all the litigious passages and containing its representations regarding the reasons why they were suppressed.  The table appears in Appendix A of the confidential version of the reasons for this order.

 

(2)        Respondent 

[95]           The Respondent contended that the litigious passages of the documentation did not meet the requirements of paragraphs 20(1)(b) and (c) of the Act.  The Applicant was thus not relieved of its onus of showing that disclosure should have been refused.

 

[96]           The Respondent also contended that the Applicant’s argument that information could be exempted under paragraph 20(1)(c) even if it is in the public domain in another form was not valid.

 

[97]           The Respondent noted that the affidavits from his witnesses contained specific and detailed representations explaining why disclosure of the information would not cause injury.

 

[98]           The Respondent also submitted a table addressing the Applicant’s objections to disclosure of the litigious passages.  The table appears in Appendix B of the confidential version of the reasons for this order.

 

[99]           Regarding 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) reversed the holding by Mr. Justice Harrington that they were exempted from paragraph 20(1)(b).  In paragraphs 6 and 7 of her reasons, Mr. Justice Desjardins wrote:

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).

 

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.

 

 

[100]       The Federal Court of Appeal, having held that the interests of justice would not be well served, referred the matter back to this Court for redetermination on the basis of the Federal Court of Appeal’s reasons.

 

[101]       I have therefore examined the reviewer’s notes and the correspondence and find that pages 187, 188, 200 and 202 contain information about the Applicant the disclosure of which would cause injury.  Disclosure of that information should therefore be refused under paragraph 20(1)(c).

 

[102]       The Federal Court of Appeal also reversed Mr. Justice Harrington’s holding that documents containing information in the public domain could still be considered confidential within the meaning of paragraph 20(1)(b) if it is in a different form.  In paragraph 53 of his reasons, Mr. Justice Harrington wrote:

[…] 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.

 

[103]       Mr. Justice Desjardins held at paragraph 2 that  “once the information is within the public domain, it is no longer confidential, even if it differs in form.”

 

[104]       The remaining issue is whether paragraph 20(1)(c) could apply to these documents.  The Applicant argued that disclosure of this information in the form in which it is presented could give an advantage to its competitors and cause it injury.

 

[105]       In AstraZeneca Canada Inc. v. Canada (Health), 2005 FC 189, [2005] F.C.A. No. 859 (F.C.) (QL), Mr. Justice Phelan addressed a similar issue and ruled that the injury alleged by the Applicant was too vague to warrant a refusal to disclose the documents in question under paragraph 20(1)(c).

 

[106]       In paragraph 81 of his reasons, Mr. Justice Phelan wrote:

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.

 

[107]       Mr. Justice Phelan 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 at page 403:

[…] An alternative argument is advanced under paragraph 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.

 

 

[108]       The Federal Court of Appeal recently upheld the decision by Mr. Justice Phelan in AstraZeneca Canada Inc. v. Canada (Health), 2006 FCA 241, [2006] F.C.A. No. 1076 (F.C.A.) (QL).   In the wake of that decision, I allowed the parties to make additional submissions.

 

[109]       Except for the pages referred to in paragraph 112 and like Mr. Justice Phelan, I am also not convinced by the Applicant’s arguments in this regard and hold that the Applicant did not discharge the onus of sufficiently demonstrating the probability that it would sustain injury if documents containing information already in the public domain were disclosed.

 

[110]       Having reviewed the documents covered by this application for judicial review and considered the parties’ arguments and the principles established by the applicable case law and legislation, I rule as follows:

 

[111]       The pages in respect of which the Applicant says that disclosure should be refused because they contain information that is not “as such” in the public domain are not exempt under subsection 20(1)(c).  According to the tables submitted by the parties, those pages are 7 to 16, 43 to 46, 48 to 54, 204 to 211, 213 to 225, 227 to 231, 233 to 235, 237, 239 to 241, 243, 245, 246 and 296.

 

[112]       However, disclosure should be refused under paragraph 20(1)(c) in respect of documents containing more specific or detailed information than the information in the public domain the disclosure of which would likely cause the Applicant significant loss of profit or undermine its competitiveness.  According to the tables submitted by the parties, those pages are pages 57, 187, 188, 200 and 202.

 

[113]       Disclosure of pages 105 to 115, 119 to 121, 137 to 167, 212, 236, 242 and 244 should be refused under paragraph 20(1)(b) of the Act because those pages contain confidential information that was treated as such by the Applicant and is not in the public domain.

 

[114]       At the hearing, counsel for the Respondent conceded that some passages on pages 226, 232, 238 and 244 should be exempted under subsection 20(1) of the Act.  The Court’s view is that those pages should be suppressed in their entirety under section 25 of the Act because I believe it would be extremely difficult to isolate the information that should not be disclosed.  The same is true of the pages referred to in paragraphs 112 and 113.

 

[115]       The rest of the documentation covered by this application can be disclosed as weeded by the Respondent in Exhibit “U” of Margery Snider’s confidential affidavit of July 17, 2001, because subsection 20(1) of the Act does not apply.

 

JUDGMENT

 

THE COURT ORDERS that this application for judicial review be allowed in part pursuant to these reasons.  Given the outcome of the matter, all without costs.

 

“Michel Beaudry”

 

 

 

 

 

 

Certified true translation

François Brunet, LLB, BCL

 

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          T-36-02

 

STYLE OF CAUSE:                          MERCK FROSST CANADA LTD.

                                                            v. MINISTER OF HEALTH

                                                            OF CANADA

 

 

PLACE OF HEARING:                    Montréal, Quebec

 

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

 

REASONS FOR JUDGMENT

AND JUDGMENT:                          The Honourable Mr. Justice Beaudry

 

DATED:                                             October 12, 2006

 

 

 

APPEARANCES:

 

Karl Delwaide                                                              FOR THE APPLICANT

Karine Joizil

 

Marie Crowley                                                             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