Date: 20030606
Docket: A-130-02
Citation: 2003 FCA 257
CORAM: RICHARD C.J.Enter Coram Names just after [Comment] code.
Separated by a hard return. Maximum 3.
NOËL J.A.
SEXTON J.A.
BETWEEN:
Enter Style of Cause just after [Comment] code
WYETH-AYERST CANADA INC.
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
Heard at Ottawa, Ontario, on May 13, 2003.
Judgment delivered at Ottawa, Ontario, on June 6, 2003.
REASONS FOR JUDGMENT BY: RICHARD C.J.
CONCURRED IN BY: NOËL J.A.
SEXTON J.A.
Date: 20030606
Docket: A-130-02
Citation: 2003 FCA 257
CORAM: RICHARD C.J.Enter Coram Names just after [Comment] code.
Separated by a hard return. Maximum 3.
NOËL J.A.
SEXTON J.A.
BETWEEN:
Enter Style of Cause just after [Comment] code
WYETH-AYERST CANADA INC.
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
RICHARD C.J.
This is an appeal by Wyeth-Ayerst Canada Inc. ("Wyeth-Ayerst") from Justice Heneghan's Order dated February 5, 2002 dismissing Wyeth-Ayerst's application for judicial review of a decision by the Minister of Health ("Minister") to release two letters pursuant to a request made under the Access to Information Act, R.S.C. 1985, c. A-1 ("the Act").
Facts
On November 27, 1997, Health Canada gave notice of proposed Regulations to amend the Regulations under the Food and Drugs Act, R.S.C. 1985, c. F-27, s. 1 ("the proposed regulations"). The effect of the proposed regulations would be the creation of a single standard applicable to both natural and synthetic source conjugated estrogen products. The proposed regulations invited the public to make representations regarding the proposal. The two letters at issue, dated February 11, 1998 (the "First Letter") and December 22, 1998 (the "Second Letter"), are part of Wyeth-Ayerst's submissions in relation to Premarin®, a natural source estrogen product.
On June 22, 1999, Health Canada's Access to Information and Privacy Office ("Access Office") received a request pursuant to the Act for a copy of information received since 1997 concerning conjugated estrogens. After receiving the request, Health Canada contacted Wyeth-Ayerst and advised that its submissions were considered responsive to the request. Wyeth-Ayerst made representations to the Access Office disputing the proposed release of the information on the basis that the information fell within one or more of the exemptions set out in subsection 20(1) of the Act. The Access Office disagreed. Accordingly, Wyeth-Ayerst sought judicial review of the decision.
Application for Judicial Review
The application for judicial review was held in camera, in accordance with a Confidentiality Order obtained by the appellant on February 15, 2001. Heneghan J. dismissed the application.
On the preliminary issue of the eligibility of the requester, the reviewing judge concluded that there was sufficient evidence to support the standing of the third party requester.
In choosing the standard of review to be applied to the substance of the application, the reviewing judge concluded that the Minister's decision to disclose the documents was an exercise of his Ministerial discretion. Accordingly, she determined that the Minister's decision should not be reviewed de novo but should be afforded some deference. Based on that standard, the reviewing judge concluded that the evidence did not establish that the information was entitled to any of the exemptions pursuant to subsection 20(1) of the Act.
Appellant's Submissions
Wyeth-Ayerst appeals the decision of the reviewing judge on three grounds. First, the reviewing judge chose and applied the wrong standard of review; second, the reviewing judge erred in concluding that the third party was eligible to request the information; and third, the reviewing judge failed to correctly apply the evidence before her to the exemptions from disclosure listed in subsection 20(1) of the Act.
Analysis
The Standard of Review
Recently, the Supreme Court of Canada in Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] S.C.J. No. 18 at paras. 20-25 reinforced the primacy of the pragmatic and functional approach in the review of administrative decisions. This multi-factorial approach must be used to determine the standard of review in every case where there is a review of an administrative decision-maker. A standard of review based on a single criterion, such as jurisdiction or discretion, is not acceptable. McLachlin C.J., at para. 25, held that:
...it is no longer sufficient to slot a particular issue in a pigeon hole of judicial review and, on this basis, demand correctness from the decision-maker. Nor is a reviewing court's interpretation of a privative clause or mechanism of review solely dispositive of a particular standard of review: Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc. [2001] 2 S.C.R. 100, 2001 SCC 36, at para. 27. The pragmatic and functional approach demands a more nuanced analysis based on consideration of a number of factors. This approach applies whenever a court reviews the decision of an administrative body.
The Supreme Court of Canada also discussed the standard of review which the Court of Appeal must apply to the reviewing judge at the secondary appellate level: Dr. Q, supra at paras. 43-44. As the Court of Appeal is dealing with the appellate review of a lower court, not the judicial review of an administrative decision-maker, the rules outlined in Housen v. Nikolaisen, 2002 SCC 33, [2002] S.C.J. No. 31 apply. The question of the proper standard of review is a question of law, therefore the Court of Appeal must determine whether the reviewing judge has chosen and applied the proper standard of review on the correctness standard. Where the reviewing judge errs in choosing and applying the standard of review, the Court of Appeal must correct the error, substitute the appropriate standard of review and assess or remit the administrative decision-maker's decision on that basis.
In this case, the reviewing judge erred in choosing the standard of review. Rather than applying the pragmatic and functional approach, the reviewing judge relied solely on the nature of the decision to select the standard of review. Accordingly, this Court must substitute the correct standard of review and assess the Minister's decision on that basis.
Based on the pragmatic and functional approach, the standard of review applicable to the Minister's decision is correctness. While different provisions of the Act were engaged, a similar analysis was carried out by Evans J. in 3430901 v. Canada (Ministry of Industry), [2002] 1 F.C. 421 (C.A.) and Gonthier J. in Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8, [2003] S.C.J. No. 7.
The statutory right to review supports a more searching standard. First, there is no privative clause in the Act. Second, there is an explicit review provision. Subsection 44(1) grants a third party the right to have the Federal Court review a decision made by the head of a government institution. Third, subsection 2(1) of the Act indicates that a less deferential standard of review should apply. Subsection 2(1), the purpose clause, expressly provides for a review of refusals of access which are independent of the government whether by the Information Commissioner or the Federal Court:
| Purpose
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.
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Objet
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.
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Accordingly, the absence of a privative clause, in conjunction with the explicit provision for the Court to review refusals of access and the importance ascribed by the purpose clause in the Act to independent review are indicative of a less deferential standard of review: Evans J. in 3430901, supra at para. 34 and Gonthier J. in Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), supra at para. 15.
Since the Minister has no greater expertise than the Court, a less deferential standard of review is warranted. The Minister, through the specialized departmental unit referred to as the Access Office, does have expertise in responding to access to information requests. However, the Access Office has no more expertise than the Court which often interprets and applies statutory exemptions. The Court is better skilled in balancing the public's right to disclosure against the individual's right to confidentiality. Further, as Evans J. aptly explained in 3430901, supra at para. 36: "...if the Court were to confine its duty...to review ministerial refusals to access requests by deferring to ministerial interpretations and applications of the Act, it would, in effect, be putting the fox in charge of guarding the henhouse." The greater expertise of the Court supports less deference.
As stated above, the independent review purpose in subsection 2(1) of the Act is advanced by adopting a correctness standard. Further, the provision at issue in this case, subsection 20(1), is a mandatory and not a discretionary provision which also points to a less deferential standard of review.
Finally, the nature of the question is one of mixed fact and law. The Minister is required to interpret the exemptions available pursuant to subsection 20(1) and to determine on the facts whether the information must be exempted. While the nature of the question suggests greater deference, when weighed against the other three factors, a standard of review of correctness is warranted.
The Eligibility of the Requester
Wyeth-Ayerst argues that the two letters cannot be disclosed because the Minister did not provide enough evidence to demonstrate that the access requester satisfies the eligibility requirements set out in subsection 4(1) and extension order number 1 SOR/89-206 (which provide only that the requester must be an individual or a corporation present in Canada). This argument must fail.
In Cyanamid Canada Inc. v. Canada (Minister of National Health and Welfare) (1992), 45 C.P.R. (3d) 390, [1992] F.C.J. No. 950 (C.A.), this Court held that the government institution must be reasonably satisfied that the requester is qualified. In my view, the Minister has provided sufficient evidence to discharge this burden. The affidavit evidence of Margery Carol Snider, Assistant Access to Information Coordinator for the Department of Health, indicates that she turned her mind to the eligibility of the requester and, based on the information before her, concluded that the requester was entitled to access.
The Applicability of the Exemptions to Disclosure
While, the Minister has already agreed to redact certain parts of each letter, Wyeth-Ayerst claims that the Minister cannot disclose the existence or the content of the First and Second letter as they fall squarely within the exemptions set out in subsection 20(1) of the Act. Alternatively, Wyeth-Ayerst seeks to redact certain additional parts of the two letters on the basis of these exemptions. Subsection 20(1) provides:
| Third party information
20. (1) Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Act that contains
(a) trade secrets of a third party;
(b) financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party;
(c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party; or
(d) information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party.
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Renseignements de tiers
20. (1) Le responsable d'une institution fédérale est tenu, sous réserve des autres dispositions du présent article, de refuser la communication de documents contenant_:
a) des secrets industriels de tiers;
b) des renseignements financiers, commerciaux, scientifiques ou techniques fournis à une institution fédérale par un tiers, qui sont de nature confidentielle et qui sont traités comme tels de façon constante par ce tiers;
c) des renseignements dont la divulgation risquerait vraisemblablement de causer des pertes ou profits financiers appréciables à un tiers ou de nuire à sa compétitivité;
d) des renseignements dont la divulgation risquerait vraisemblablement d'entraver des négociations menées par un tiers en vue de contrats ou à d'autres fins.
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It is well established that the party requesting the exemption bears the burden of proof. Further, exceptions to access should be limited. As Jerome A.C.J. stated in Maislin Industries Limited v. Minister of Industry Trade and Commerce, [1984]1 F.C. 939 at 942-943:
There was no disagreement that the burden of proof rests upon the applicant Maislin. It should be emphasized however, that since the basic principle of these statutes is to codify the right of public access to Government information two things follow: first, that such public access ought not be frustrated by the courts except upon the clearest grounds so that doubt ought to be resolved in favour of disclosure; second, the burden of persuasion must rest upon the party resisting disclosure whether, as in this case, it is the private corporation or citizen, or in other circumstances, the Government.
Affidavit evidence which is vague or speculative in nature cannot be relied upon to justify an exemption under subsection 20(1) of the Act. Rather the Minister must consider the probative value of the affidavit evidence to determine whether it discloses a reasonable explanation for exempting each record (Canada (Information Commissioner) v. Canada (Prime Minister), [1993] 1 F.C. 427 at 486-87 (T.D.); St. Joseph Corp. v. Canada (Public Works and Government Services), 2002 FCT 274, [2002] F.C.J. No. 361 at para. 40; Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services) (1991), 67 D.L.R. (4th) 315 at 317, [1990] F.C.J. No. 81 (C.A.)).
In the present case, the affidavit evidence on behalf of Wyeth-Ayerst only discloses the affiant's subjective belief that the letters were intended to be confidential. It does not elaborate on how or why the information contained in the letters is confidential. Only part of the First Letter was marked as confidential. The appellant has not established that any of the additional information should be exempted pursuant to subsection 20(1)(a), (b), (c) or (d) of the Act. Therefore, only the parts of the letter which the Minister has agreed to excise will be redacted.
Accordingly, this appeal will be dismissed with costs.
"J. Richard"
Chief Justice
"I agree
Marc Noël J.A."
"I agree
J. Edgar Sexton J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-130-02
Enter Style of Cause just after [Tab] code. STYLE OF CAUSE: Wyeth-Ayerst Canada Inc.
-vs-
The Attorney General of Canada
PLACE OF HEARING: Ottawa
DATE OF HEARING: May 13, 2003
REASONS FOR
JUDGMENT BY:RICHARD C.J.
CONCURRED IN BY:NOËL J.A.
SEXTON J.A.
DATED: June 6, 2003
APPEARANCES:
Enter Appearances just after [Comment] code.
Mr. Nicholas McHaffie FOR THE APPELLANT
Mr. Christopher Rupar FOR THE RESPONDENT
SOLICITORS OF RECORD:
Enter Solicitors of Record just after [Comment] code.
Stikeman Elliott LLPFOR THE APPELLANT
Ottawa, Ontario
Mr. Morris A. RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario