Canada (Health) v. Merck Frosst Canada Ltd.

Canada (Health) v. Merck Frosst Canada Ltd.
Court (s) Database
Federal Court of Appeal Decisions
Date
2009-05-26
Neutral citation
2009 FCA 166
File numbers
A-492-06, A-499-06
Decision Content
Federal Court of Appeal
Cour d’appel fédérale
Date: 20090526
Dockets: A-492-06
A-499-06
Citation: 2009 FCA 166
CORAM: DESJARDINS J.A.
NOËL J.A.
PELLETIER J.A.
BETWEEN:
MINISTER OF HEALTH
Appellant/Respondent
to Cross-appeal
and
MERCK FROSST CANADA LTD.
Respondent/Appellant
by Cross-appeal
Heard at Ottawa, Ontario, on February 17, 2009.
Judgment delivered at Ottawa, Ontario, on May 26, 2009.
REASONS FOR JUDGMENT BY: DESJARDINS J.A.
CONCURRED IN BY: NOËL J.A.
PELLETIER J.A.
Federal Court of Appeal
Cour d’appel fédérale
Date: 20090526
Dockets: A-492-06
A-499-06
Citation: 2009 FCA 166
CORAM: DESJARDINS J.A.
NOËL J.A.
PELLETIER J.A.
BETWEEN:
THE MINISTER OF HEALTH
Appellant/ Respondent
to Cross-appeal
and
MERCK FROSST CANADA LTD.
Respondent/Appellant
by Cross-appeal
REASONS FOR JUDGMENT
DESJARDINS J.A.
[1] The Court has before it two appeals and two cross-appeals. The appeals are brought by the Minister of Health and the cross-appeals, by Merck Frosst Canada Ltd. (Merck Frosst).
[2] The appeal and the cross-appeal in the principal appeal file, A-492-06 (T-90-01), are from the judgment by a Federal Court judge (the trial judge) in Merck Frosst Canada Ltd. v. Canada (Minister of Health), 2006 FC 1201.
[3] The appeal and cross-appeal in the companion appeal file, A-499-06 (T-36-02), are from the judgment by the same judge in Merck Frosst Canada Ltd. v. Canada (Minister of Health), 2006 FC 1200.
[4] In both of those cases, the trial judge had before him two applications for judicial review under section 44 of the Access to Information Act, R.S.C. 1985, c. A-1 (the Act). Those applications were filed against two decisions by the appellant (the Minister or Health Canada) under section 28 of the Act, namely those made on January 2, 2001 (appeal A-492-06) and December 19, 2001 (appeal A-499-06). The decisions were made in response to two access to information requests received by the Minister from a requestor third party—in this case, a competitor of Merck Frosst—pursuant to section 4 of the Act.
[5] In the first case (appeal file A-492-06), the Minister’s decision pertained to the disclosure of records concerning the New Drug Submission (NDS) for Singulair® (Singulair), a drug developed by Merck Frosst for the treatment of asthma. In the second case (appeal file A-499-06), the Minister’s decision concerned the disclosure of records pertaining to a Supplemental New Drug Submission (SNDS) for Singulair® (Singulair), a drug developed by Merck Frosst for the treatment of asthma in children aged two to five years.
[6] The access requestor’s request in appeal file A-492-06 was for the following records:
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® Tablets and Chewable Tablets.
[7] The requestor’s request for access in appeal file A-499-06 was for the following records:
All reasonable information on 4 mg SINGULAIR® which was filed as a Supplemental New Drug Submission, including correspondence and the reviewer’s notes.
[8] The reasons for this judgment dispose jointly of both appeals, A-492-06 and A-499-06. These reasons for judgment will be placed in both appeal files. Separate judgments will be placed in each file.
FACTS
[9] The facts are undisputed. In appeal file A-492-06, they are found at paragraphs 3 to 21 of the trial judge’s reasons and in appeal file A-499-06, at paragraphs 3 to 28 of the trial judge’s reasons. These decisions appear in the law reports, as indicated above.
[10] In appeal file A-492-06, the Minister, after considering section 20 of the Act, disclosed approximately 20 pages of records on August 16, 2000, to the party requesting access, without giving Merck Frosst notice pursuant to section 27 of the Act, the Minister being satisfied that no exception applied to those pages.
[11] Also on that date, the Minister decided to refuse to disclose another part of the records. However, the Minister sent Merck Frosst a notice, under section 27, of his intention to disclose pages 1-330, 333-337, 341-375, 379-447, 449-496, 500-524, 526, 527 and 529-547 of the records requested by the access requestor. The Minister asked that within 20 days after that notice was sent, Merck Frosst send it representations setting out the grounds justifying non-disclosure of the record or part thereof pursuant to subsection 20(1) of the Act.
[12] Merck Frosst obtained an extension of time to respond until September 25, 2000.
[13] In a letter dated September 25, 2000, Merck Frost responded to the Minister’s notice from August 16, 2000, with a letter of approximately 10 pages setting forth its objections to the disclosure of information on the pages stated in the notice. In particular, Merck Frosst objected to the disclosure of general categories of information, such as manufacturing techniques, chemistry, dates, controls and file numbers. Merck Frosst also objected to the disclosure of the approximately 20 pages that had already been sent, without notice, to the third party.
[14] On January 2, 2000, the Minister gave Merck Frost notice under subsection 28(3) of the Act of its decision to disclose certain records. Attached to that notice was Appendix “J” to the affidavit of Margery Snider from Health Canada. (Said appendix contained pages 1-23, 26-35, 45-50, 52-59, 61-71, 74-84, 87-104, 111-125, 135-208, 210, 212, 213, 216-220, 222-330, 333-337, 341-387, 389-447, 449-463, 467-496, 500-527, 529-534, 536-544 and 547 of the requested records). The documentation accompanying that notice thus comprised 335 pages on which information was marked for deletion further to Merck Frosst’s representations received at that date (A.B., Vol. XXI, page 5159, paragraph 31 and page 5263).
[15] On January 9, 2001, Merck Frosst filed an application for judicial review with the Federal Court.
[16] On September 26, 2001, Margery Snider filed a second affidavit including Appendix “Q”, which contained an even more heavily pared down version of the records that were the subject of the Margery Snider’s Appendix “J” from January 2, 2001 (A.B., Vol. XXI, page 5193, paragraphs 91-95 and Vol. XXIII, page 6368). This version therefore dates from after Merck Frosst instituted the review proceedings.
[17] In appeal file A-499-06, the Minister, after reviewing section 20 of the Act, sent eight pages of records on June 11, 2001, to the party requesting access, without giving Merck Frost notice pursuant to section 27 of the Act, the Minister being satisfied that no exception applied to those pages.
[18] On December 19, 2001, the Minister gave Merck Frost notice, under section 28 of the Act, of its decision to disclose the records it had deleted further to Merck Frosst’s representations.
[19] On January 8, 2002, Merck Frosst filed an application for judicial review with the Federal Court.
[20] On July 17, 2002, Margery Snider filed an affidavit containing the deleted records. Only the following pages of the document reproduced at Exhibit “U” of that affidavit remain in dispute, namely 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.
ISSUES
[21] There are two types of issues: those relating to the Minister’s appeals and those relating to the cross-appeals by Merck Frosst. Overall, these issues concern the interpretation and application of sections 20, 25, 27, 28, 44 and 51 of the Act.
[22] The following issues are raised in the Minster’s appeals:
(a) Did the trial judge err in law in concluding that a government institution cannot disclose information to an access requestor unless the third party (in this case, Merck Frosst) has been given prior notice by the government institution?
(b) Did the trial judge err in fact and law in applying the exceptions provided at paragraphs 20(1)(a), (b) and (c) of the Act to the facts of the case?
(c) Did the trial judge err in fact and law in applying section 25 of the Act?
[23] The following issues are raised in Merck Frosst’s cross-appeals:
(a) Is Merck Frosst entitled to obtain a declaration with regard to the lawfulness of the government institution’s disclosing its records to an access requestor without first notifying Merck Frosst?
(b) Did the trial judge err in ruling in favour of the validity of the government institution’s procedure whereby the onus to establish that the Minister must refuse the disclosure of a record is on the party objecting to disclosure?
(c) Did the trial judge err in fact and law in applying the exceptions provided at paragraphs 20(1)(a), (b) and (c) of the Act to the facts of the case?
[24] Each issue will be dealt with according to its rank. However, since they are related, issue (a) from Merck Frosst’s cross-appeal will be dealt with immediately after issue (a) from the Minister’s appeal. As well, issue (b) from the Minister’s appeal and issue (c) from Merck Frosst’s cross-appeal will be addressed together, owing to their related nature.
APPLICABLE STANDARDS OF REVIEW
[25] The usual rules applicable to the appellate review of a subordinate court, as set forth in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, paragraph 43, and Housen v. Nikolaisen, [2002] 2 S.C.R. 235, paragraphs 27-28, apply in this case. Questions of law are decided on a standard of correctness. However, this Court will only intervene on questions of fact or questions of mixed fact and law if there is a palpable and overriding error. If a pure error of law is extricated from a mixed question of fact and law, the question of law thus isolated is decided according to the standard of correctness (Housen v. Nikolaisen, loc. cit., paragraph 31).
APPLICABLE STATUTORY PROVISIONS
[26] The applicable provisions from the Act are reproduced as they read when the events giving rise to this dispute unfolded:
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.
. . .
4. (1) Subject to this Act, but notwithstanding any other Act of Parliament, every person who is
(a) a Canadian citizen, or
(b) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act,
has a right to and shall, on request, be given access to any record under the control of a government institution.
. . .
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.
. . .
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.
[. . .]
4. (1) Sous réserve des autres dispositions de la présente loi mais nonobstant toute autre loi fédérale, ont droit à l’accès aux documents relevant d’une institution fédérale et peuvent se les faire communiquer sur demande :
a) les citoyens canadiens;
b) les résidents permanents au sens du paragraphe 2(1) de la Loi sur l’immigration et la protection des réfugiés.
[. . .]
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.
[. . .]
25. Notwithstanding any other provision of this Act, where a request is made to a government institution for access to a record that the head of the institution is authorized to refuse to disclose under this Act by reason of information or other material contained in the record, the head of the institution shall disclose any part of the record that does not contain, and can reasonably be severed from any part that contains, any such information or material.
. . .
25. Le responsable d’une institution fédérale, dans les cas où il pourrait, vu la nature des renseignements contenus dans le document demandé, s’autoriser de la présente loi pour refuser la communication du document, est cependant tenu, nonobstant les autres dispositions de la présente loi, d’en communiquer les parties dépourvues des renseignements en cause, à condition que le prélèvement de ces parties ne pose pas de problèmes sérieux.
[. . .]
27. (1) Where the head of a government institution intends to disclose any record requested under this Act, or any part thereof, that contains or that the head of the institution has reason to believe might contain
a) trade secrets of a third party,
(b) information described in paragraph 20(1)(b) that was supplied by a third party, or
(c) information the disclosure of which the head of the institution could reasonably foresee might effect a result described in paragraph 20(1)(c) or (d) in respect of a third party,
The head of the institution shall, subject to subsection (2), if the third party can reasonably be located, within thirty days after the request is received, give written notice to the third party of the request and of the fact that the head of the institution intends to disclose the record of part thereof.
(2) Any third party to whom a notice is required to be given under subsection (1) in respect of an intended disclosure may waive the requirement, and where the third party has consented to the disclosure the third party shall be deemed to have waived the requirement.
(3) A notice given under subsection (1) shall include
(a) a statement that the head of the government institution giving the notice intends to release a record or a part thereof that might contain material or information described in subsection (1);
(b) a description of the contents of the record or part thereof that, as the case may be, belong to, were supplied by or relate to the third party to whom the notice is given; and
(c) a statement that the third party may, within twenty days after the notice is given, make representations to the head of the government institution that has control of the record as to why the record or part thereof should not be disclosed.
28. (1) Where a notice is given
by the head of a government
institution under subsection
27(1) to a third party in respect
of a record or a part thereof,
(a) the third party shall, within
twenty days after the notice is
given, be given the opportunity
to make representations to the
head of the institution as to why
the record or the part thereof
should not be disclosed; and
(b) the head of the institution
shall, within thirty days after
the notice is given, if the third
party has been given an
opportunity to make
representations under paragraph
(a), make a decision as to
whether or not to disclose the
record or the part thereof and
give written notice of the
decision to the third party.
(2) Representations made by a
third party under paragraph
(1)(a) shall be made in writing
unless the head of the
government institution
concerned waives that
requirement, in which case they
may be made orally.
(3) A notice given under
paragraph (1)(b) of a decision
to disclose a record requested
under this Act or a part thereof
shall include
(a) a statement that the third
party to whom the notice is
given is entitled to request a
review of the decision under
section 44 within twenty days
after the notice is given; and
(b) a statement that the person
who requested access to the
record will be given access
thereto or to the part thereof
unless, within twenty days after
the notice is given, a review of
the decision is requested under
section 44.
(4) Where, pursuant to
paragraph (1)(b), the head of a
government institution decides
to disclose a record requested
under this Act or a part thereof,
the head of the institution shall
give the person who made the
request access to the record or
the part thereof forthwith on
completion of twenty days after
a notice is given under that
paragraph, unless a review of
the decision is requested under
section 44.
44. (1) Any third party to whom
the head of a government
institution is required under
paragraph 28(1)(b) or
subsection 29(1) to give a
notice of a decision to disclose
a record or a part thereof under
this Act may, within twenty
days after the notice is given,
apply to the Court for a review
of the matter.
. . .
51. Where the Court
determines, after considering an
application under section 44,
that the head of a government
institution is required to refuse
to disclose a record or part of a
record, the Court shall order the
head of the institution not to
disclose the record or part
thereof or shall make such other
order as the Court deems
appropriate.
27. (1) Sous réserve du paragraphe (2), le responsable d’une institution fédérale qui a l’intention de donner communication totale ou partielle d’un document est tenu de donner au tiers intéressé, dans les trente jours suivant la réception de la demande, avis écrit de celle-ci ainsi que de son intention, si le document contient ou s’il est, selon lui, susceptible de contenir :
a) soit des secrets industriels d’un tiers;
b) soit des renseignements visés à l’alinéa 20(1)b) qui ont été fournis par le tiers;
c) soit des renseignements dont la communication risquerait, selon lui, d’entraîner pour le tiers les conséquences visées aux alinéas 20(1) c) ou d).
La présente disposition ne vaut que s’il est possible de rejoindre le tiers sans problèmes sérieux.
(2) Le tiers peut renoncer à l’avis prévu au paragraphe (1) et tout consentement à la communication du document vaut renonciation à l’avis.
(3) L’avis prévu au paragraphe (1) doit contenir les éléments suivants :
a) la mention de l’intention du responsable de l’institution fédérale de donner communication totale ou partielle du document susceptible de contenir les secrets ou les renseignements visés au paragraphe (1);
b) la désignation du contenu total ou partiel du document qui, selon le cas, appartient au tiers, a été fourni par lui ou le concerne;
c) la mention du droit du tiers de présenter au responsable de l’institution fédérale de qui relève le document ses observations quant aux raisons qui justifieraient un refus de communication totale ou partielle, dans les vingt jours suivant la transmission de l’avis.
28. (1) Dans les cas où il a
donné avis au tiers
conformément au paragraphe
27(1), le responsable d’une
institution fédérale est tenu :
a) de donner au tiers la
possibilité de lui présenter, dans
les vingt jours suivant la
transmission de l’avis, des
observations sur les raisons qui
justifieraient un refus de
communication totale ou
partielle du document;
b) de prendre dans les trente
jours suivant la transmission de
l’avis, pourvu qu’il ait donné au
tiers la possibilité de présenter
des observations conformément
à l’alinéa a), une décision quant
à la communication totale ou
partielle du document et de
donner avis de sa décision au
tiers.
(2) Les observations prévues à
l’alinéa (1)a) se font par écrit,
sauf autorisation du responsable
de l’institution fédérale quant à
une présentation orale.
(3) L’avis d’une décision de
donner communication totale
ou partielle d’un document
conformément à l’alinéa (1)b)
doit contenir les éléments
suivants :
a) la mention du droit du tiers
d’exercer un recours en révision
en vertu de l’article 44, dans les
vingt jours suivant la
transmission de l’avis;
b) la mention qu’à défaut de
l’exercice du recours en
révision dans ce délai, la
personne qui a fait la demande
recevra communication totale
ou partielle du document.
(4) Dans les cas où il décide, en
vertu de l’alinéa (1)b), de
donner communication totale
ou partielle du document à la
personne qui en a fait la
demande, le responsable de
l’institution fédérale donne
suite à sa décision dès
l’expiration des vingt jours
suivant la transmission de l’avis
prévu à cet alinéa, sauf si un
recours en révision a été exercé
en vertu de l’article 44.
44. (1) Le tiers que le
responsable d’une institution
fédérale est tenu, en vertu de
l’alinéa 28(1)b) ou du
paragraphe 29(1), d’aviser de la
communication totale ou
partielle d’un document peut,
dans les vingt jours suivant la
transmission de l’avis, exercer
un recours en révision devant la
Cour.
[. . .]
51. La Cour, dans les cas où
elle conclut, lors d’un recours
exercé en vertu de l’article 44,
que le responsable d’une
institution fédérale est tenu de
refuser la communication totale
ou partielle d’un document, lui
ordonne de refuser cette
communication; elle rend une
autre ordonnance si elle
l’estime indiqué.
ANALYSIS
[27] A preliminary observation must be made.
[28] At paragraph 56 of its memorandum, Merck Frosst was quick to cite not only the provisions of the Act but also Canada’s international agreements—namely the North American Free Trade Agreement (NAFTA) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement)—the Treasury Board policy issued pursuant to paragraph 70(1)(c) of the Act, Health Canada’s internal policies and the principles underlying the duty of fairness.
[29] However, none of this, except for the Act and procedural fairness, was argued before the trial judge (see Merck Frosst’s application for judicial review, public A.B., Vol. I, page 47). The trial judge focused on the Act in question, with one exception. In appeal A-492-06, he mentioned the Treasury Board’s policy at paragraph 69 of his reasons when summarizing the respondent’s arguments but did not dispose of that argument.
[30] The standard of review can only be applied and the appeals decided on the basis of the Act at issue. For one thing, the trial judge cannot be criticized for errors on issues that were not brought to his attention. For another, the appellant cannot remake its case on appeal.
Issue (a) from the Minister’s appeal: Did the trial judge err in law in concluding that a government institution cannot disclose information to an access requestor unless the third party (in this case, Merck Frosst) has been given prior notice by the government institution?
[31] Merck Frosst objects to the decisions made on August 16, 2000, (in appeal file A-492-06) and June 11, 2001, (in appeal file A-499-06) pursuant to which the Minister disclosed records to the access requestor without giving prior notice to the “third party”—in this case, Merck Frosst.
[32] The Minister alleges that, on the contrary, subsection 27(1) of the Act does not require the head of a government institution to contact the “third party” unless the record contains or the head of the institution has reason to believe it might contain information protected by subsection 20(1) of the Act.
[33] The trial judge ruled on this point at paragraphs 63 and 64 of his reasons (in appeal file A-492-06) and at paragraphs 71 and 72 (in appeal file A-499-06):
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.
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.
[Emphasis added.]
[34] The language of subsection 27(1) of the Act requires the head of a government institution to contact the “third party” only if the record contains or the head of the institution has reason to believe it might contain secrets or information described in paragraph 27(1) of the Act. Paragraph 27(1) of the Act then refers to the trade secrets of a third party, information described in paragraph 20(1)(b) that was supplied by a third party and information the disclosure of which the head of the government institution could reasonably foresee might effect a result described in paragraph 20(1)(c) or (d) in respect of a third party.
[35] In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Justice Iacobucci called to mind Elmer Driedger’s statements in Construction of Statutes (2d ed. 1983) according to which there is currently only one principle or approach:
[T]he words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
[36] The object of the Act, as stated at section 2, 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”.
[37] In Rubin v. Canada (Minister of Transport), [1998] 2 F.C. 430, Justice McDonald, writing for the Court, explained at paragraph 23 of his reasons the effect of section 2 of the Act:
23 In my opinion, therefore, all exemptions must be interpreted in light of this clause. That is, all exemptions to access must be limited and specific. This means that where there are two interpretations open to the Court, it must, given Parliament’s stated intention, choose the one that infringes on the public’s right to access the least. It is only in this way that the purpose of the Act can be achieved. It follows that an interpretation of an exemption that allows the government to withhold information from public scrutiny weakens the stated purpose of the Act.
[38] In the landmark case Air Atonabee Ltd. v. Canada (Minister of Transport), [1989] F.C.J. No. 453, Justice MacKay of the Federal Court concluded as follows regarding the duty of the head of a government institution pursuant to section 28 of the Act at that time, now section 27:
11 The Act precludes disclosure of various types of information as specifically defined and also authorizes refusal to disclose information in certain other defined cases. In relation to third party information, that is information relating to a party other than the requestor or a government agency, which is not otherwise exempt, the Access to Information Act exempts from disclosure only certain kinds of information as defined in section 20, the relevant parts of which for purposes of this case are:
. . .
The Act provides for intervention and an opportunity for representations by a third party, not in all cases but in certain cases, as follows. . . .
12 It may be worth stressing in passing that the Act does not require notice to a third party before disclosure of information relating to that party except in the circumstances set out in section 28(1). Where the head of the institution considering all the relevant evidence before her or him concludes that the information requested is not of a character referred to in that section, notice to the third party is not required, will not be ordered by the Court and no right to apply for review under section 44(1) accrues. (See Sawridge Indian Band v. Canada (Minister of Indian Affairs and Northern Development) (1987), 10 F.T.R. 48, aff’d sub nom. Twinn v. Minister of Indian Affairs and Northern Development (1987), 80 N.R. 263 (F.C.A.)).
[Emphasis added.]
[39] The trial judge ignored this case law and therefore erred in law at paragraph 64 of the reasons for judgment in A-492-06 and at paragraph 72 of the reasons for judgment in A-499-06.
Issue (a) from Merck Frosst’s cross-appeal: Is Merck Frosst entitled to obtain a declaration with regard to the lawfulness of the government institution’s disclosing its records to an access requestor without first notifying Merck Frosst?
[40] At paragraphs 44 and 64 of his reasons in appeal file A-492-06, and at paragraphs 52 and 62 of his reasons in appeal file A-499-06, the trial judge concluded that Merck Frosst is entitled to obtain a declaratory order with regard to the lawfulness of the disclosures of records without prior notice on August 16, 2000, and June 11, 2001. However, the formal judgment delivered by the Federal Court did not contain a declaration.
[41] In light of my findings on the preceding issue, it follows that Merck Frosst cannot obtain a declaration regarding the lawfulness of the government institution’s disclosing the disclosed records without prior notice.
Issues (b) from the Minister’s appeal and (c) from Merck Frosst’s cross-appeal: Did the trial judge err in fact and law in applying the exceptions provided at paragraphs 20(1)(a), (b) and (c) of the Act to the facts of the case?
Paragraph 20(1)(a)
[42] In appeal A‑492‑06, the trial judge made the following conclusion at paragraph 105 of his reasons:
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.
[Emphasis added.]
[43] However, appeal file A-490-06 does not contain any specific conclusion relating to paragraph 20(1)(a) of the Act.
[44] The Minister submits that the trial judge erred in neglecting to state which legal test he used to conclude that paragraph 20(1)(a) applies to the 33 pages of records listed.
[45] The Minister also submits that the judge presented no analysis in support of his decision to exclude these pages and that the respondent did not provide any objective and specific evidence allowing the judge to conclude as he did.
[46] Merck Frosst simply contends that the trial judge had all of the evidence before him and that he correctly decided that the pages contained trade secrets and should be excluded under paragraph 20(1)(a) of the Act.
[47] In its memorandum, Merck Frosst filed summary tables of its evidence in support of its claim that the excluded pages contain trade secrets. These tables refer to affidavits filed on June 1, 2001, by experts hired by Merck Frosst—amongst others, Robert Sarrazin and Annie Tougas.
[48] In his affidavit dated June 1, 2001, Mr. Sarrazin writes the following in respect of pages 462-493, 495 and 518-512 (A.B., Vol. XXXII, page 8510):
[translation]
170. Pages 461 to 547 pertain to the review of the summary of chemical and galenical research. This information deals with—and repeats—the information provided by Merck Frosst for the NDS. These pages contain information that constitutes the trade secrets in their fundamental components: specifically, the manufacture, analysis, control and specifications of the active substance and the final product. These details are particularly sought-after by generic competitors to develop their own product.
[49] Mr. Sarrazin goes on to briefly describe the contents of the relevant pages, after which he reiterates that they constitute a trade secret. He then makes several references to the statement at paragraph 170 of his affidavit (A.B., Vol. XXXII, page 8510):
[translation]
175. At page 470, a table indicates the number of known impurities in Merck Frosst’s raw material and the acceptable limits.
176. That constitutes a trade secret. I reiterate my comments at paragraph 170 on this subject.
177. This information deals with—and repeats—the information provided by Merck Frosst for the NDS. This is scientific or technical information (from Merck Frosst) that presents a likely risk of significant commercial or financial repercussions. Innovative companies, including Merck Frosst, generally treat this type of information as confidential.
[Emphasis added.]
[50] In her affidavit dated June 1, 2001, Annie Tougas states the following (A.B., Vol. III, page 179):
96. The specifications list the major product criteria (such as pages 470-71, 475-477, 482-483, 520-521 of the Records) and the limits to be met for ensuring product quality and consistency. Batches are released on the Canadian market according to the specifications. They are usually based on critical parameters (such as pages 475-476, 481-483, 520-521 of the Records) and if released, it would provide information on the specific parameters (such as pages 475, 481, 485-487 of the Records) subject or release and/or stability control. . . . Besides the confidentiality and prejudicial impacts of any unwarranted disclosure of the information, the said information lies at the core of what constitutes a trade secret.
[Emphasis added.]
[51] Thus, Merck Frosst’s affiants provided general statements and made copious references to information that had already been deleted, in the September 26, 2001, Appendix “Q”, from the records that the Minister intends to send to the access requestor.
[52] However, in Société Gamma Inc. v. Canada (Department of Secretary of State), [1994] F.C.J. No. 589, cited by this Court in Canada (Information Commissioner) v. Canada (Canadian Transportation Accident Investigation and Safety Board), [2006] F.C.J. No. 704, Justice Strayer, then of the Federal Court, found at paragraph 7 of his reasons:
. . . . There is unfortunately no authoritative jurisprudence on what is a “trade secret” for the purposes of the Access to Information Act. One can, I think, conclude that in the context of subsection 20(1) trade secrets must have a reasonably narrow interpretation since one would assume that they do not overlap the other categories: in particular, they can be contrasted to “commercial . . . confidential information supplied to a government institution . . . treated consistently in a confidential manner . . .” which is protected under paragraph (b). In respect of neither (a) nor (b) is there a need for any harm to be demonstrated from disclosure for it to be protected. There must be some difference between a trade secret and something which is merely “confidential” and supplied to a government institution. I am of the view that a trade secret must be something, probably of a technical nature, which is guarded very closely and is of such peculiar value to the owner of the trade secret that harm to him would be presumed by its mere disclosure. . . .
[Emphasis added.]
[53] In AstraZeneca Inc. v. Canada (Health), [2005] F.C.J. No. 859, Justice Phelan of the Federal Court echoed Justice Strayer’s remarks:
62 Strayer J. (as he then was) in Société Gamma Inc. v. Canada (Secretary of State) (1994), 79 FTR 42 held that the term “trade secret” is to be given a relatively narrow interpretation. A trade secret must be something of a technical nature which is very closely guarded and is of such peculiar value to the owner of the trade secret that harm to him would be presumed from its mere disclosure.
63 It is not so much a question of narrow or broad interpretation as it is determining whether the information falls within the common law meaning of trade secret. Parliament intended to protect genuine trade secrets.
64 Health Canada’s Access to Information Act Third Party Information Operational Guidelines outlines the department’s view of the criteria to be met:
· the information must be secret in an absolute or relative sense (is known only by one or a relatively small number of persons);
· the possessor of the information must demonstrate that he has acted with the intention to treat the information as secret;
· the information must be capable of industrial or commercial application;
· the possessor must have an interest (eg. an economic interest) worthy of legal protection.
65 The type of information which could potentially fall into this class includes the chemical composition of a product and the manufacturing processes used. However, it is not every process or test which would fall into this class particularly where such process or test is common in a particular industry.
[Emphasis added.]
[54] It is clear from these two decisions that the notion of trade secret is interpreted in a narrow sense and that in the test used in the case law to determine whether paragraph 21(1)(a) applies to a record’s contents, a high threshold is applied. Anyone who relies on that provision must necessarily furnish specific, objective and detailed evidence that the information constitutes a trade secret.
[55] The trial judge’s decision contains no statements on the notion of trade secret, the applicable legal test to characterize information as a trade secret or the burden of proof.
[56] Furthermore, the affidavits relied on by Merck Frosst contain some very broad statements. These include sentences such as [translation] “[Disclosure of information] . . . presents a likely risk of significant commercial or financial repercussions . . .” (paragraph 177, affidavit of Mr. Sarrazin, cited above) and “. . . They are usually based on critical parameters . . .” (paragraph 96, affidavit of Ms. Tougas, cited above). [Emphasis added.]
[57] Furthermore, the bases for an exclusion under paragraph 20(1)(a) are entangled and sometimes even confused with the bases required under paragraph 20(1)(b), as evidenced by the following sentence at paragraph 177 of Mr. Sarrazin’s affidavit, cited above: [translation] “Innovative companies, including Merck Frosst, generally treat this type of information as confidential. . . .”. In Société Gamma Inc., Justice Strayer was careful to point out at paragraph 7 of his reasons, cited above, that “[t]here must be some difference between a trade secret and something which is merely ‘confidential’”.
[58] Lastly, Merck Frosst did not meet its burden of providing objective and specific evidence providing a basis on which to conclude that the information still remaining on the pages in dispute constitutes trade secrets.
[59] Absent explanations in support of the trial judge’s decision stated at paragraph 105 of his reasons in appeal file A-492-06 and absent adequate evidence, I find that the trial judge erred in law in exempting the 33 pages of records listed at that paragraph 105.
Paragraph 20(1)(b)
[60] The Minister challenges the trial judge’s conclusions at paragraph 106 of his reasons in A-492-06 and at paragraph 113 of his reasons in A-496-06.
[61] The paragraphs are the following:
In appeal A-492-06, paragraph 106 -
Disclosure of pages 14 (the reference to the percentage), 33 to 34, 117, 147 (the last three lines), and 207 should be r