Merck Frosst Canada Ltd. v. Canada (Minister of Health), [2012] 1 SCR 23

JudgeMcLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
CourtSupreme Court (Canada)
Case DateNovember 12, 2010
JurisdictionCanada (Federal)
Citations[2012] 1 SCR 23;426 NR 200;[2012] SCJ No 3 (QL);2012 SCC 3;[2012] ACS no 3;[2012] N.R. TBEd. FE.001

Merck Frosst Can. v. Can. (SCC) - Access to Information Act - Third party information - Exemptions

MLB being edited

Currently being edited for N.R. - judgment temporarily in rough form.

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2012] N.R. TBEd. FE.001

Merck Frosst Canada Ltd. (appellant) v. Minister of Health (respondent) and BIOTECanada (intervenor)

(33290; 33320; 2012 SCC 3; 2012 CSC 3)

Indexed As: Merck Frosst Canada Ltd. v. Canada (Minister of Health)

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

February 3, 2012.

Summary:

Health Canada received two access to information requests relating to a certain new drug submission (NDS) and supplementary new drug submission (SNDS) filed by pharmaceutical company Merck Frosst Canada Ltd. (Merck). Health Canada identified several hundred pages in response to each request. A series of disputes arose between Merck and Health Canada about what information was exempt from disclosure under s. 20(1) of the Access to Information Act. Health Canada disclosed some pages without notifying Merck. Merck applied for judicial review against Health Canada's decisions, under s. 44 of the Act.

The Federal Court, in decisions reported at [2006] F.T.R. Uned. 943 and at (2006), 301 F.T.R. 241, found that disclosure by Health Canada without prior notice to Merck contravened s. 20(1) of the Act, and that some 200 pages were exempt from disclosure, while the remaining pages could be disclosed. The court also held that it would be extremely difficult to sever and disclose non-exempt information pursuant to s. 25 of the Act. Health Canada appealed the decisions. Merck cross-appealed.

The Federal Court of Appeal, in a decision reported at 400 N.R. 1, allowed Health Canada's appeals and dismissed Merck's cross-appeals. The court ordered that all of the remaining pages at issue for both the NDS and the SNDS be disclosed. Merck appealed. The issues related to the particular claims for exemption, as well as: (a) the standard of appellate review; (b) the threshold for triggering the duty to give a third party notice of the access request and what was required in deciding whether or not to give notice; and (c) the applicable burden and standard of proof on a third party claiming a s. 20(1) exemption.

The Supreme Court of Canada, Deschamps, Abella and Rothstein, J.J. dissenting, dismissed the appeals.

Crown - Topic 7101

Examination of public documents - General - These appeals arose out of requests for access to information that had been provided to Health Canada by a drug manufacturer as part of its new drug submissions - The Supreme Court of Canada stated that the appeals illustrated the need for balance - "Broad rights of access to government information serve important public purposes ... Providing access to government information, however, also engages other public and private interests. Government, for example, collects information from third parties for regulatory purposes, information which may include trade secrets and other confidential commercial matters. Such information may be valuable to competitors and disclosing it may cause financial or other harm to the third party who had to provide it ... Thus, too single-minded a commitment to access to this sort of government information risks ignoring these interests and has the potential to inflict a lot of collateral damage. There must, therefore, be a balance between granting access to information and protecting these other interests in relation to some types of third party information" - See paragraphs 1 to 3.

Crown - Topic 7161

Examination of public documents - Freedom of information - Legislation - General (incl. interpretation) - The Supreme Court of Canada stated that the Access to Information Act "strikes a careful balance between the sometimes competing objectives of encouraging disclosure and protecting third party interests. While the Act requires government institutions to make broad disclosure of information, it also provides exemptions from disclosure for certain types of third party information, such as trade secrets or information the disclosure of which could cause economic harm to a third party. It also provides third parties with procedural protections" - See paragraph 4.

Crown - Topic 7161

Examination of public documents - Freedom of information - Legislation - General (incl. interpretation) - Health Canada received access to information requests relating to a third party's new drug submissions - Those requests led to court proceedings in the Federal Courts and ultimately to these appeals - The Supreme Court of Canada outlined the two legislative and regulatory schemes that were engaged, one relating to new drug approval and the other to access to information - See paragraphs 14 to 28.

Crown - Topic 7162

Examination of public documents - Freedom of information - Legislation - Purpose of - The Supreme Court of Canada stated that the purpose of the Access to Information Act "is to provide a right of access to information in records under the control of a government institution. The Act has three guiding principles: first, that government information should be available to the public; second, that necessary exceptions to the right of access should be limited and specific; and third, that decisions on the disclosure of government information should be reviewed independently of government (s. 2(1))" - See paragraph 21.

Crown - Topic 7171

Examination of public documents - Freedom of information - Legislation - Disclosure - Confidential information supplied by third party - The Supreme Court of Canada stated that the Access to Information Act "must be given a broad and purposive interpretation ... Nonetheless, when the information at stake is third party, confidential commercial and related information, the important goal of broad disclosure must be balanced with the legitimate private interests of third parties and the public interest in promoting innovation and development. The Act strikes this balance between the demands of openness and commercial confidentiality in two main ways. First, it affords substantive protection of the information by specifying that certain categories of third party information are exempt from disclosure. Second, it provides procedural protection. The third party whose information is being sought has the opportunity, before disclosure, to persuade the institution that exemptions to disclosure apply and to seek judicial review of the institution's decision to release information which the third party thinks falls within the protected sphere" - See paragraphs 22 and 23.

Crown - Topic 7171

Examination of public documents - Freedom of information - Legislation - Disclosure - Confidential information supplied by third party - These appeals related to Health Canada's decisions to release third party information in response to two access to information requests - The Supreme Court of Canada stated that the general right of access was subject to a duty on government institutions not to disclose certain categories of third party information (the exemptions found in s. 20 of the Access to Information Act), including information that could not reasonably be severed from the exempted third party information (s. 25) - In addition to those "substantive" protections, the Act provided "procedural" protections for third parties - A process of notification and judicial review (ss. 27(1), 28, 44(1)) permitted the third party to mount objections and have them considered before the information was disclosed - See paragraphs 24 to 28.

Crown - Topic 7171

Examination of public documents - Freedom of information - Legislation - Disclosure - Confidential information supplied by third party - These appeals raised a number of issues about the interpretation of the statutory exemptions from the general rule of disclosure that related to third party confidential commercial information as set out in s. 20(1) of the Access to Information Act - Before turning to those issues, the Supreme Court of Canada put the s. 20(1) exemptions in the context of the other exemptions in the Act, listed from ss. 13 to 24 - See paragraphs 96 and 97.

Crown - Topic 7171

Examination of public documents - Freedom of information - Legislation - Disclosure - Confidential information supplied by third party - Health Canada received two access to information requests relating to a certain new drug submission (NDS) and supplementary new drug submission (SNDS) by Merck Frosst Canada Ltd. - Section 20(1)(b) of the Access to Information Act provided an exemption for a third party's confidential financial, commercial, scientific or technical information - The reviewing judge upheld the exemptions Merck claimed - The Court of Appeal concluded that Merck's evidence did not discharge its onus to show the disputed records were exempt - The Supreme Court of Canada agreed with the Court of Appeal to the extent that it held that Merck had not shown that the substantive contents of the records contained confidential financial, commercial, scientific or technical information - However, the Court of Appeal did not address Merck's submissions that the formatting and structure of the NDS/SNDS qualified for exemption, and that the very fact it listed studies (and would be understood to have relied on them) was confidential information, even if the studies themselves were in the public domain - The Supreme Court rejected those claims for s. 20(1)(b) exemptions - See paragraphs 128 to 183.

Crown - Topic 7173

Examination of public documents - Freedom of information - Legislation - Disclosure of information where disclosure could result in financial loss or prejudice to competitive position - Section 20(1)(c) of the Access to Information Act exempted from disclosure any information which, if disclosed, would 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 - The Supreme Court of Canada addressed three aspects of that exemption: (i) the degree of likelihood required by the provision that harm would result from disclosure; (ii) whether disclosing information already in the public domain could cause harm; and (iii) the types of harm contemplated by the provision - See paragraphs 185, 192 to 227.

Crown - Topic 7173

Examination of public documents - Freedom of information - Legislation - Disclosure of information where disclosure could result in financial loss or prejudice to competitive position - Section 20(1)(c) of the Access to Information Act exempted from disclosure any information which, if disclosed, would 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 - This case centered on, inter alia, the degree of likelihood required by the provision that harm would result from disclosure - The Supreme Court of Canada concluded that "the accepted formulation of 'reasonable expectation of probable harm' captures the need to demonstrate that disclosure will result in a risk of harm that is well beyond the merely possible or speculative, but also that it need not be proved on the balance of probabilities that disclosure will in fact result in such harm" - See paragraph 206.

Crown - Topic 7173

Examination of public documents - Freedom of information - Legislation - Disclosure of information where disclosure could result in financial loss or prejudice to competitive position - Health Canada received two access to information requests relating to new drug submissions filed by Merck Frosst Canada Ltd. - Merck claimed an exemption from disclosure under s. 20(1)(c) of the Access to Information Act, submitting that its compilation of publicly available studies was a separate work from the studies themselves and one which was created by Merck's employees with a considerable investment of time and resources - Specifically, what was not publicly available was the way a group of publicly available studies was compiled for a particular purpose - The Supreme Court of Canada addressed whether disclosing information already in the public domain could cause harm - "[I]t may be possible in some cases to show that the way in which publicly available information has been assembled in a particular situation is not, itself, publicly known. Once that is done, the question becomes whether disclosing it has been shown to give rise to the risk of harm required under s. 20(1)(c)" - In the end result, the court concluded that Merck had not established the grounds for a s. 20(1)(c) exemption - See paragraphs 207 to 210.

Crown - Topic 7173

Examination of public documents - Freedom of information - Legislation - Disclosure of information where disclosure could result in financial loss or prejudice to competitive position - Section 20(1)(c) of the Access to Information Act exempted from disclosure any information which, if disclosed, would 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 - The Supreme Court of Canada addressed the parties' submissions about the type of harm on which a third party might rely in claiming the s. 20(1)(c) exemption - "I conclude that as a matter of principle, the disclosure of information that is not already in the public domain and that could give competitors a head start in product development, or which they could use to their competitive advantage, may be shown to give rise to a reasonable expectation of probable harm or prejudice to the third party's competitive position" - See paragraphs 211 to 220.

Crown - Topic 7173

Examination of public documents - Freedom of information - Legislation - Disclosure of information where disclosure could result in financial loss or prejudice to competitive position - These appeals related to judicial review applications of Health Canada's decisions to release information in response to access to information requests relating to new drug submissions filed by a pharmaceutical company (Merck) - The reviewing judge ruled against Merck on many of its claims for exemption under s. 20(1)(c) of the Access to Information Act - The Court of Appeal was not persuaded that the judge had erred in those rulings - The Supreme Court of Canada held that the Court of Appeal, in making its own assessment, did not err in its disposition of those claims for exemption - Health Canada's evidence was that virtually all of the unredacted information was in the public domain, and it gave precise references to where the information could be publicly obtained; that evidence was largely unanswered - Merck did not provide evidence showing how the disclosure of the redacted form of the information could reasonably be expected to give rise to the harm and prejudice it claimed - As for Merck's submission that release of some of the pages could give an inaccurate perception of the drug's safety, "[t]he courts have often - and rightly - been sceptical about claims that the public misunderstanding of disclosed information will inflict harm on the third party ... [I]t would be quite an unusual case in which this sort of claim for exemption could succeed. It is particularly important to allow broad access to this sort of information in the context of the pharmaceutical industry" - See paragraphs 221 to 227.

Crown - Topic 7207

Examination of public documents - Freedom of information - Bars - Confidentiality - [See fourth Crown - Topic 7171 ].

Crown - Topic 7210

Examination of public documents - Freedom of information - Bars - Financial loss - [See fifth Crown - Topic 7173 ].

Crown - Topic 7214

Examination of public documents - Freedom of information - Bars - Trade secrets - Section 20(1)(a) of the Access to Information Act provided an exemption from disclosure for "any record ... that contains trade secrets of a third party" - The Supreme Court of Canada stated that a trade secret for the purposes of s. 20(1) "should be understood as being a plan or process, tool, mechanism or compound which possesses each of the four characteristics set out in the Guidelines [Health Canada's Access to Information Act, Third Party Information, Operational Guidelines] ... This approach is consistent with the common law definition of 'trade secrets' and takes account of the clear legislative intent that a trade secret is something different from the broader category of confidential commercial information which is separately and specifically protected under the Act. This approach is also consistent with the use of 'secrets industriels' in the French version of the Act" - See paragraphs 100 to 112.

Crown - Topic 7214

Examination of public documents - Freedom of information - Bars - Trade secrets - Health Canada received access to information requests relating to two new drug submissions made to it by a pharmaceutical company, the third party to the requests - Section 20(1)(a) of the Access to Information Act provided an exemption from disclosure for "any record ... that contains trade secrets of a third party" - An issue for decision in this case was how "trade secrets" should be defined - The Supreme Court of Canada rejected the third party's submission that "trade secrets" be interpreted consistently with the definition of that term in s. 19(4) of the Security of Information Act - The purposes of the statutes were significantly different - "While maintaining national security is not incompatible with ensuring government accountability and democracy, it seems clear that access to information may be limited where issues of national security come into play: see ss. 15 and 16 of the Act. Therefore, it would not be appropriate to import into the access to information context the definition of 'trade secret' set out under the heading Economic Espionage in the Security of Information Act" - See paragraphs 113 to 116.

Crown - Topic 7214

Examination of public documents - Freedom of information - Bars - Trade secrets - Health Canada received access to information requests relating to two new drug submissions made to it by a pharmaceutical company, the third party to the requests - Section 20(1)(a) of the Access to Information Act provided an exemption from disclosure for "any record ... that contains trade secrets of a third party" - An issue for decision in this case was how "trade secrets" should be defined - The Supreme Court of Canada rejected the third party's argument that the Act's notion of a "trade secret" should be construed broadly according to the North American Free Trade Agreement (NAFTA), article 1711 - "Canada is not necessarily required to adopt the treaty definition of 'trade secrets' into its access to information law in order to fulfill its treaty obligations. ... Canada has opted to address these obligations in the pharmaceutical context by focussing on protecting parties against commercial use of their trade secrets by others" - Protection of a broader class of confidential commercial information under s. 20(1)(b) of the Act and the protection of personal information under s. 19 further weakened the third party's argument - Consideration of the NAFTA did not indicate that Parliament intended a definition of "trade secrets" that was broader than the definition the court had endorsed - See paragraphs 117 and 118.

Crown - Topic 7214

Examination of public documents - Freedom of information - Bars - Trade secrets - Section 20(1)(a) of the Access to Information Act provided an exemption from disclosure for "any record ... that contains trade secrets of a third party" - Merck Frosst Canada Ltd. objected to a decision made by Health Canada to disclose records to the access requestor - The records concerned, inter alia, the new drug submission (NDS) for a drug developed by Merck - Merck relied on the s. 20(1)(a) exemption for over 150 pages in the NDS, on the basis that the pages contained information that constituted a "trade secret", namely, the specific manufacturing process used for the drug - The reviewing judge exempted some 30 pages - The Court of Appeal concluded that Merck had not met its burden of providing objective and specific evidence that any of the records contained information that constituted a trade secret, and decided that all of the remaining pages should be disclosed - The Supreme Court of Canada upheld the decision - The Court of Appeal had placed an unduly heavy burden on Merck to establish that the definition of "trade secrets" applied - By imposing the burden it did, the Court of Appeal erred in law - However, that error did not result in the Court of Appeal reaching the wrong conclusion - It did not err in finding that Merck's evidence simply was not capable of establishing that the documents contained trade secrets - Merck's evidence was not responsive to the records as currently redacted - It did not explain how what remained in the records constituted trade secrets within the meaning of the exemption - See paragraphs 120 to 122.

Crown - Topic 7217

Freedom of information - Bars - Severability (redaction) - The Supreme Court of Canada stated that "When heads of government institutions determine that a requested record contains exempted information in respect of which they are authorized to refuse disclosure, they must go on to consider the issue of severance. By virtue of s. 25 of the [Access to Information] Act, they are required to disclose any part of the record that does not contain such exempted information and which can reasonably be severed from any part that does contain exempted information" - In this case, the reviewing judge found entire pages were exempt that the institutional head had decided could be disclosed with exempted material redacted - The Court of Appeal faulted the reviewing judge for substituting his discretion for that of the institutional head with respect to s. 25 - The Supreme Court of Canada disagreed on that point - On the s. 44 review, "it was the role of the reviewing judge to review the disclosure decision of the institutional head and to determine whether that decision was in accordance with the Act. It follows that the Court of Appeal was in error to the extent it faulted the judge for having 'substituted' his view for that of the institutional head. The reviewing judge was required to consider whether the institutional head had properly applied s. 25" - See paragraphs 229 to 233.

Crown - Topic 7217

Freedom of information - Bars - Severability (redaction) - Merck Frosst Canada Ltd. objected to two decisions made by Health Canada to disclose records to the access requestor - The records concerned a new drug developed by Merck - The reviewing judge concluded that an entire page should be deleted and that disclosure of certain pages should be suppressed under s. 25 of the Access to Information Act - An error identified by the Court of Appeal was that the reviewing judge failed to explain why the non-exempt material could not reasonably be severed and disclosed - The Supreme Court of Canada held that the Court of Appeal was on firm ground - "The reviewing judge did not explain why it would be 'extremely difficult' to sever and disclose the non-exempt information. In the absence of any explanation from the reviewing judge (and none being apparent from his reasons read in the context of the whole record), the Court of Appeal was obliged to intervene. Additionally, in this Court, Merck ... did not offer submissions in defence of the substance of the reviewing judge's decision" - See paragraphs 233 and 234.

Crown - Topic 7217

Freedom of information - Bars - Severability (redaction) - The Supreme Court of Canada reiterated some of the key principles in relation to s. 25 of the Access to Information Act - "[I]t is important to recognize that applying s. 25 is mandatory, not discretionary. The section directs that the institutional head 'shall [not 'may'] disclose any part of the record that does not contain' exempted information, provided it can reasonably be severed ... Thus, the institutional head has a duty to ensure compliance with s. 25 and to undertake a severance analysis wherever information is found to be exempt from disclosure. The heart of the s. 25 exercise is determining when material subject to the disclosure obligation 'can reasonably be severed' from exempt material. In my view, this involves both a semantic and a cost-benefit analysis ... Even where the severed text is not completely devoid of meaning, severance will be reasonable only if disclosure of the unexcised portions of the record would reasonably fulfill the purposes of the Act ... Section 25 must also be considered in relation to the question of giving notice to a third party under s. 27" - See paragraphs 235 to 240.

Crown - Topic 7220.04

Examination of public documents - Freedom of information - Bars - Reasonable expectation of probable harm - [See fifth Crown - Topic 7173 ].

Crown - Topic 7220.08

Examination of public documents - Freedom of information - Bars - Prejudice to governmental economic interests - [See second Crown - Topic 7214 ].

Crown - Topic 7246

Examination of public documents - Freedom of information - Judicial review and appeals - Standard of review - A third party (the appellant in this case) requested a "review" under s. 44 of the Access to Information Act of a decision by a head of a government institution to disclose all or part of the disputed documents - The Supreme Court of Canada stated that the role of the judge on review was to determine whether the institutional head had correctly applied the exemptions under s. 20(1) of the Act - Sections 44, 46 and 51 were the most relevant statutory provisions governing the review - The reviewing judge in this case gave no indication of the legal and factual findings that took him to his conclusions - The Federal Court of Appeal was therefore entitled to intervene and to carry out its own assessment of whether the reviewing judge had correctly applied the exemptions - The reviewing judge made no findings of fact in the face of conflicting evidence, and generally provided no explanation of the applicable legal principles or how or why they applied to the disputed documents - See paragraphs 52 to 56.

Crown - Topic 7283

Examination of public documents - Freedom of information - Practice - Evidence and proof - The Supreme Court of Canada concluded that a third party "must establish that the statutory exemption applies on the balance of probabilities. However, what evidence will be required to reach that standard will be affected by the nature of the proposition the third party seeks to establish and the particular context of the case" - Turning to the Court of Appeal's reasons in the present case, the Supreme Court opined that they applied a higher burden than the civil standard of the balance of probabilities in relation to the s. 20(1)(a) and (b) exemptions (trade secrets and confidential information, respectively) - The Court of Appeal had called for a "high threshold" in relation to s. 20(1)(a) and applied a "heavy" burden in relation to s. 20(1)(b) - The Supreme Court stated that "[w]hile exemptions are the exception and disclosure the general rule, with any doubt being resolved in favour of disclosure, the applicable standard of proof is still the civil standard of the balance of probabilities" - See paragraphs 93 to 95.

Crown - Topic 7286

Examination of public documents - Freedom of information - Practice - Notice of intended disclosure - The Supreme Court of Canada reviewed the notice provisions under the Access to Information Act, and concluded that "[b]efore disclosing certain types of third party information, the head of a government institution must make every reasonable effort to give that third party written notice of the request for disclosure, except where the third party has waived the notice requirement. Unless the third party consents to disclosure, the head must also give the third party an opportunity to make representations as to why the record or part of it should not be disclosed: ss. 27(1), 27(2) and 28" - Although these appeals focussed on the decisions to disclose, the Supreme Court addressed the two main issues concerning the notice scheme, in light of their importance, namely: (1) the threshold for triggering the head's obligation to give notice to the third party, and (2) the nature of the head's obligation to examine the record before deciding whether or not notice was required - See paragraphs 57 to 59.

Crown - Topic 7286

Examination of public documents - Freedom of information - Practice - Notice of intended disclosure - Section 27(1) of the Access to Information Act specified when the head of the government institution had to make reasonable efforts to give notice to a third party - In this case, the Health Canada head disclosed some documentation concerning the new drug submission (NDS) and supplementary new drug submission (SNDS) for a drug developed by Merck Frosst Canada Ltd. without giving notice to Merck - Merck complained that it should have been given notice before any disclosure was made - The reviewing judge found that the disclosure without prior notice contravened the spirit of the legislation - The Court of Appeal disagreed - It found that s. 27(1) required notice only if the record contained or might contain information the disclosure of which was prohibited by s. 20(1) - The Supreme Court of Canada rejected Merck's contention that the proposed disclosure of any part of a NDS or SNDS automatically triggered the duty to give notice -"Such a right to automatic notice is not supported by the text or purpose of the provisions or by the jurisprudence that has interpreted them" - See paragraphs 60 to 69.

Crown - Topic 7286

Examination of public documents - Freedom of information - Practice - Notice of intended disclosure - The Supreme Court of Canada stated that, in considering a request for disclosure of third party information under the Access to Information Act, "the institutional head has four main possible courses of action (aside from the exercise of discretion under s. 20(6)), two of which engage the notice provisions. He or she may decide to: (i) disclose the requested information without notice; (ii) refuse disclosure without notice; (iii) form an intention to disclose severed material with notice; or (iv) give notice because there is reason to believe that the record requested might contain exempted material" - See paragraph 71.

Crown - Topic 7286

Examination of public documents - Freedom of information - Practice - Notice of intended disclosure - The Supreme Court of Canada stated that "[i]nstitutional heads must have some reason to believe that access cannot be refused without notice to the third party ... To put it simply, institutional heads must take their duty not to disclose exempt third party information as seriously as their duty to disclose information that the Act requires to be disclosed" - See paragraph 74.

Crown - Topic 7286

Examination of public documents - Freedom of information - Practice - Notice of intended disclosure - The two situations relevant to this case in which notice had to be given under s. 27(1) of the Access to Information Act were: (1) when the institutional head had reason to believe that the record might contain information described in s. 20(1); and (2) when the head proposed to disclose information severed from other information as required by s. 25 - An element of each of those conditions was that the head "intends to disclose" - The Supreme Court of Canada interpreted the phrase as referring to situations which fell between those in which the head concluded that neither disclosure nor refusal of disclosure without notice was required - To the extent that the reasons of the Court of Appeal suggested the head had to have actually formed an opinion on the matter as opposed to simply having no "reason to believe", the Supreme Court respectfully disagreed - The approach proposed by the Supreme Court set "quite a low threshold for the requirement of giving notice. This is not only consistent with the text of the Act, but properly reflects the balance the Act strikes between disclosure and protection of third parties" - In this case, a document disclosed by the head to the access requester without notice to the third party contained severed information pursuant to s. 25 - In the Supreme Court's view, that was not in accordance with the requirements of the Act - See paragraphs 75 to 83.

Crown - Topic 7286

Examination of public documents - Freedom of information - Practice - Notice of intended disclosure - Section 27(1) of the Access to Information Act specified when the head of the government institution had to make reasonable efforts to give notice to a third party - The Supreme Court of Canada summarized its conclusions on s. 27(1) in the following manner - "(i) With respect to third party information, the institutional head has equally important duties to disclose and not to disclose and must take both duties equally seriously. (ii) The institutional head: should disclose third party information without notice only where the information is clearly subject to disclosure, that is, there is no reason to believe that it is exempt ; should refuse to disclose third party information without notice where the information is clearly exempt, that is, where there is no reason to believe that the information is subject to disclosure. (iii) The institutional head must give notice if he or she: is in doubt about whether the information is exempt, in other words if the case does not fall under the situations set out in point (ii); intends to disclose exempted material to serve the public interest pursuant to s. 20(6); or intends to disclose severed material pursuant to s. 25" - See paragraph 84.

Crown - Topic 7286

Examination of public documents - Freedom of information - Practice - Notice of intended disclosure - The Supreme Court of Canada stated that there were important policy and practical considerations that had to be balanced in order to decide what sort of review was required of the institutional head when deciding to give notice - "First, information should be disclosed whenever required by the Act. Second, third party confidential commercial information must receive the protection which the Act intends for it. Third, it is the duty of the institutional head to make the disclosure decision and respect the rights of third parties without simply shifting that responsibility onto the third party. While the head will often require the assistance of the third party in order to reach a decision about how the Act ought to apply, the duty to decide whether to disclose or not remains with the head. The head does not discharge that duty by simply giving notice at the first sign of potentially exempted information and leaving it to the third party to do all the work. The head is not entitled to simply put the entire onus of review on the third party. Finally, the practical constraints on the head must be considered. The head may not be well informed about the subject matter of the information and may therefore be disadvantaged in assessing it. The head is also bound by the time limits under the Act; one of the responsibilities of the head is to provide timely access to the record" - See paragraph 87.

Food and Drug Control - Topic 1102

Drugs - New drugs - Legislation, re - [See second Crown - Topic 7161 ].

Cases Noticed:

Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; 213 N.R. 161, refd to. [para. 22].

Criminal Lawyers' Association (Ont.) v. Ontario (Minister of Public Safety and Security), [2010] 1 S.C.R. 815; 402 N.R. 350; 262 O.A.C. 258; 2010 SCC 23, refd to. [para. 22].

Canada Post Corp. v. Canada (Minister of Public Works) et al., [1995] 2 F.C. 110; 179 N.R. 350 (F.C.A.), refd to. [para. 22].

Privacy Commissioner (Can.) v. Canada Labour Relations Board et al., [1996] 3 F.C. 609; 118 F.T.R. 1 (T.D.), affd. (2000), 257 N.R. 66; 25 Admin. L.R.(3d) 305 (F.C.A.), refd to. [para. 22].

Information Commissioner (Can.) v. Royal Canadian Mounted Police (Commissioner), [2003] 1 S.C.R. 66; 301 N.R. 41; 2003 SCC 8, refd to. [para. 53].

Information Commissioner (Can.) v. Canada (Minister of National Defence, [2011] 2 S.C.R. 306; 416 N.R. 105; 2011 SCC 25, refd to. [para. 53].

Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 F.T.R. 194; 37 Admin. L.R. 245 (T.D.), refd to. [paras. 53, 250].

Merck Frosst Canada & Co. v. Canada (Minister of Health), [2003] F.T.R. Uned. 857; 2003 FC 1422, refd to. [para. 53].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, discussed [paras. 54, 245].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 64].

Twinn et al. v. Canada (Minister of Indian Affairs and Northern Development), [1987] 3 F.C. 368; 6 F.T.R. 41 (T.D.), affd. (1987), 80 N.R. 263 (F.C.A.), refd to. [para. 64].

Heinz (H.J.) Co. of Canada Ltd. v. Canada (Attorney General), [2006] 1 S.C.R. 441; 347 N.R. 1; 2006 SCC 13, refd to. [para. 65].

SNC-Lavalin Inc. v. Canada (Minister of Public Works) (1994), 79 F.T.R. 113 (T.D.), refd to. [para. 73].

Maislin Industries Ltd. v. Canada (Minister for Industry, Trade and Commerce) et al., [1984] 1 F.C. 939 (T.D.), refd to. [para. 89].

Canada Packers Inc. v. Canada (Minister of Agriculture) et al., [1989] 1 F.C. 47; 87 N.R. 81 (F.C.A.), refd to. [para. 89].

Rubin v. Canada Mortgage and Housing Corp. (President), [1989] 1 F.C. 265; 86 N.R. 186 (F.C.A.), refd to. [para. 89].

AtraZeneca Canada Inc. v. Canada (Minister of Health) et al. (2005), 275 F.T.R. 133; 2005 FC 189, supplementary reasons [2005] F.T.R. Uned. B37; 2005 FC 648, affd. (2006), 353 N.R. 84; 2006 FCA 241, refd to. [para. 94].

Information Commissioner (Can.) v. Prime Minister (Can.), [1993] 1 F.C. 427; 57 F.T.R. 180 (T.D.), refd to. [para. 94].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 94].

Société Gamma Inc. v. Canada (Secretary of State) (1994), 79 F.T.R. 42; 56 C.P.R.(3d) 58 (T.D.), refd to. [para. 102].

R. v. Stewart, [1988] 1 S.C.R. 963; 85 N.R. 171; 28 O.A.C. 219, refd to. [para. 105].

Crain (R.I.) Ltd. v. Ashton, [1949] O.R. 303 (H.C.J.), affd. [1950] O.R. 62 (C.A.), refd to. [para. 107].

R. v. Hape (L.R.), [2007] 2 S.C.R. 292; 363 N.R. 1; 227 O.A.C. 191; 220 C.C.C.(3d) 161; 2007 SCC 26, refd to. [para. 117].

R. v. Zingre, Wuest and Reiser, [1981] 2 S.C.R. 392; 38 N.R. 272; 10 Man.R.(2d) 62, refd to. [para. 117].

Ordon et al. v. Grail, [1998] 3 S.C.R. 437; 232 N.R. 201; 115 O.A.C. 1, refd to. [para. 117].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 117].

Schreiber v. Canada (Attorney General), [2002] 3 S.C.R. 269; 292 N.R. 250; 164 O.A.C. 354; 2002 SCC 62, refd to. [para. 117].

K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161; 2001 SCC 60, refd to. [para. 125].

Janssen-Ortho Inc. v. Canada (Minister of Health) (2007), 367 N.R. 134; 2007 FCA 252, affing. [2005] F.T.R. Uned. 966; 2005 FC 1633, discussed [paras. 143, 147].

Viandes du Breton Inc. v. Canadian Food Inspection Agency, [2006] F.T.R. Uned. 974; 2006 FC 335, refd to. [para. 156].

Canadian Football League v. Canada (Minister for Fitness and Amateur Sports) and Shoalts, [1989] 2 F.C. 480; 24 F.T.R. 62 (T.D.), refd to. [para. 192].

Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sports - see Canadian Football League v. Canada (Minister for Fitness and Amateur Sports).

Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services) (1990), 107 N.R. 89; 67 D.L.R.(4th) 315 (F.C.A.), refd to. [para. 192].

Brookfield Lepage Johnson Controls Facility Management Services v. Canada (Minister of Public Works and Government Services) (2004), 322 N.R. 388; 2004 FCA 214, refd to. [para. 192].

Chesal v. Nova Scotia (Attorney General) et al. (2003), 219 N.S.R.(2d) 139; 692 A.P.R. 139; 2003 NSCA 124, refd to. [para. 193].

Lavigne v. Commissioner of Official Languages (Can.) et al., [2002] 2 S.C.R. 773; 289 N.R. 282; 2002 SCC 53, refd to. [para. 197].

Information Commissioner (Can.) et al. v. Immigration and Refugee Board (Can.) (1997), 140 F.T.R. 140 (T.D.), refd to. [para. 197].

Hilewitz v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 706; 340 N.R. 102; 2005 SCC 57, refd to. [para. 198].

Kwiatkowsky v. Minister of Manpower and Immigration et al., [1982] 2 S.C.R. 856; 45 N.R. 116, refd to. [para. 202].

Actors' Equity Association of Australia and Australian Broadcasting Tribunal, Re (No. 2) (1985), 7 A.L.D. 584 (Admin. App. Trib.), refd to. [para. 204].

Watt v. Forests, [2007] NSWADT 197, refd to. [para. 204].

Cyanamid Canada Inc. v. Canada (Minister of National Health and Welfare) (1992), 148 N.R. 147; 9 Admin. L.R.(2d) 161 (F.C.A.), refd to. [para. 208].

AB Hassle et al. v. Canada (Minister of National Health and Welfare) et al. (1998), 161 F.T.R. 15 (T.D.), affd. [2003] 3 F.C. 360; 253 N.R. 284 (F.C.A.), refd to. [para. 219].

Wells v. Canada (Minister of Transport) (1995), 103 F.T.R. 17 (T.D.), refd to. [para. 219].

Culver v. Canada (Minister of Public Works and Government Services), [1999] F.T.R. Uned. 855 (T.D.), refd to. [para. 219].

Bitove Corp. v. Canada (Minister of Transport) (1996), 119 F.T.R. 278 (T.D.), refd to. [para. 219].

Coradix Technology Consulting Ltd. v. Canada (Minister of Public Works and Government Services) (2006), 307 F.T.R. 116; 2006 FC 1030, refd to. [para. 219].

Canada Post Corp. v. National Capital Commission (2002), 221 F.T.R. 56; 2002 FCT 700, refd to. [para. 219].

Aventis Pasteur Ltd. v. Canada (Attorney General) (2004), 262 F.T.R. 73; 2004 FC 1371, refd to. [para. 219].

Prud'homme v. Agence canadienne de développement international et al. (1994), 85 F.T.R. 302 (T.D.), refd to. [para. 219].

Coopérative fédérée du Québec et al. v. Canada (Ministre de l'Agriculture et de l'Agroalimentaire) et al. (2000), 180 F.T.R. 205 (T.D.), refd to. [para. 224].

Blank v. Canada (Minister of the Environment) (2007), 368 N.R. 279; 2007 FCA 289, refd to. [para. 237].

Information Commissioner (Can.) v. Canada (Solicitor General), [1988] 3 F.C. 551; 20 F.T.R. 314 (T.D.), refd to. [para. 237].

Montana Indian Band v. Canada (Minister of Indian Affairs and Northern Development), [1989] 1 F.C. 143; 18 F.T.R. 15 (T.D.), refd to. [para. 237].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 247].

Prairie Acid Rain Coalition et al. v. Canada (Minister of Fisheries and Oceans) et al., [2006] 3 F.C.R. 610; 345 N.R. 374; 2006 FCA 31, refd to. [para. 247].

Zenner v. College of Optometrists (P.E.I.), [2005] 3 S.C.R. 645; 342 N.R. 176; 254 Nfld. & P.E.I.R. 1; 764 A.P.R. 1; 2005 SCC 77, refd to. [para. 247].

Canadian Imperial Bank of Commerce v. Canadian Human Rights Commission, [2007] 2 F.C.R. 509; 367 N.R. 307; 2007 FCA 272, refd to. [para. 247].

Rubin v. Canada (Minister of Health) (2003), 300 N.R. 179; 2003 FCA 37, refd to. [para. 248].

Merck Frosst Canada Inc. v. Canada (Minister of National Health and Welfare), [2002] N.R. Uned. 8; 2002 FCA 35, refd to. [para. 248].

SNC Lavalin Inc. v. Canada (Minister for International Co-operation) et al. (2007), 371 N.R. 49; 77 Admin. L.R.(4th) 1; 2007 FCA 397, refd to. [para. 248].

3430901 Canada Inc. et al. v. Canada (Minister of Industry), [2002] 1 F.C. 421; 282 N.R. 284; 2001 FCA 254, refd to. [para. 249].

Underwood v. Ocean City Realty Ltd. (1987), 12 B.C.L.R.(2d) 199 (C.A.), refd to. [para. 253].

Janssen-Ortho Inc. v. Canada (Minister of Health) (2007), 367 N.R. 134; 2007 FCA 252, refd to. [para. 263].

Statutes Noticed:

Access to Information Act, R.S.C. 1985, c. A-1, sect. 2, sect. 4, sect. 20(1) (a), sect. 20(1)(b), sect. 20(1)(c), sect. 20(5), sect. 20(6), sect. 25, sect. 27(1), sect. 28, sect. 44(1) [Appendix].

Authors and Works Noticed:

Bastarache, Michel, Metallic, Naiomi and Morris, Regan, The Law of Bilingual Interpretation (2008), pp. 32 ff. [para. 203].

Brandeis, Louis D., What Publicity Can Do, Harper's Weekly (1913), vol. 58, p. 10 [para. 1].

Doray, Raymond and Charette, François, Accès à l'information: Loi annotée, jurisprudence, analyse et commentaires (Looseleaf) p. II/22-4 [para. 105].

Hughes, Roger T. and Clarizio, Dino P., Halsbury's Laws of Canada - Patents, Trade Secrets and Industrial Designs (2007), para. HPT-180 [para. 104].

Hughes, Roger T., Clarizio, Dino P., and Armstrong, Neil, Hughes & Woodley on Patents (2nd Ed. 2005), (2011 Looseleaf, Release 25) §102 [para. 104].

Parisien, Serge, Les secrets commerciaux et la loi sur l'accès á l'information du Québec (1993), pp. 22 to 25 [para. 105].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 57 to 58 [para. 104], 99 ff. [para. 203].

Vaver, David, Civil Liability for Taking or Using Trade Secrets in Canada (1981), 5 Can. Bus. L.J. 253, p. 258 [para. 105].

Counsel:

Catherine Beagan Flood and Patrick Kergin, for the appellant;

Bernard Letarte and René LeBlanc, for the respondent;

Anthony G. Creber and John Norman, for the intervener.

Solicitors of Record:

Blake, Cassels & Graydon, Toronto, Ontario, for the appellant;

Attorney General of Canada, Ottawa, Ontario, for the respondent;

Gowling Lafleur Henderson, Ottawa, Ontario, for the intervener.

These appeals were heard on November 12, 2010, before McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The Supreme Court delivered the following judgment in both official languages on February 3, 2012, and the following reasons were filed:

Cromwell, J., reasons for judgment (McLachlin, C.J.C., Binnie, LeBel, Fish and Charron, J.J., concurring) - see paragraphs 1 to 242;

Deschamps, J., dissenting reasons (Abella and Rothstein, JJ., concurring) - see paragraphs 243 to 265.

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