Digests

Wyeth-Ayerst Canada Inc. v. Canada (Attorney General)

T-19-00

2002 FCT 133, Heneghan J.

5/2/02

17 pp.

Judicial review of Minister of Health's decision to release information pursuant to request under Access to Information Act--Applicant pharmaceutical company produces natural-source hormone replacement therapy, sold under registered trade-mark "Premarin"--Principal active ingredients family of hormones known as conjugated estrogens--Competitors produce products containing estrogens derived from different sources than Premarin--In 1997 Health Canada proposed to amend Regulations under Food and Drugs Act relating to conjugated estrogens to create single standard applicable to both natural- and synthetic- source conjugated estrogen products--Applicant responded to invitation to make submissions--In 1999 Access to Information and Privacy Office of Health Canada received request for copy of information received since 1997 concerning conjugated estrogen--Health Canada advised applicant that its submissions were considered responsive to request for information--Applicant disputed proposed release of information, but Office not changing position concerning release of requested information--Applicant having no solid information about identity of requesting party, but concerned may be competitor--Application dismissed--(1) Eligibility of requester--Act, s. 4(1) stating every person who is Canadian citizen having right to government information on request-- Right extended to all individuals, corporations resident in Canada by extension order--According to affidavit filed by respondent, officer handling request addressed her mind to eligibility of requester and concluded requester eligible under Act to make request--Determination carried out by person responsible for doing so--No evidence irrelevant or improper factors entered into consideration of eligibility of requester-- Applicant failed to show determination not meeting "sufficiency of proof"--(2) Substance of application-- Purpose of Act stated in s. 2--Interpreted as meaning public access to information should not be frustrated by courts except in clearest of circumstances and burden of persuasion in this regard on party resisting disclosure--Applicant arguing documents for which seeking to prevent disclosure released by it in error to Minister--Moreover, arguing documents intrinsically confidential, commercial information amounting to trade secrets, disclosure of which would cause harm to it, interfere with future contractual and other negotiations--Burden of proof in establishing entitlement to exemption balance of probabilities--Onus on applicant-- Applicant seeking to discharge that burden by providing affidavits framed in very general language and based on belief--Affidavit based on personal belief of representative of applicant who could reasonably be expected to have personal knowledge about matters in issue insufficient and not meeting test--When applicant relying on confidentiality as basis for exemption for disclosure, that confidential basis must be objectively shown--Affidavits filed provide no more than speculation as to probable harm--Only general statements amounting merely to bald assertions unsupported by any evidence as to likelihood of material financial loss--To succeed pursuant to s. 20(1)(d) applicant must show obstruction in actual contractual negotiations--Evidence insufficient to support finding under this paragraph--Also, much of information sought to be withheld already in public domain, either as result of prior disclosures made by Office or pursuant to disclosures made in relation to pharmaceutical industry--Public availability of these materials undercutting applicant's broadly based claim for confidentiality--Since documents not confidential in nature and not otherwise within exemptions in s. 20(1), no ground for limiting authorized disclosure by ordering redaction of documents--S. 20(6) allowing release of information which might otherwise be protected under s. 20 if public interest so requires--Public interest not invoked by respondent--Applicant not establishing entitled to exemption against disclosure pursuant to s. 20(1)--Access to Information Act, R.S.C., 1985, c. A-1, ss. 2, 4, 20--Privacy Act Extension Order No. 2, SOR/89-206, s. 2.