A-515-04
2005 FCA 215
Minister of Health Canada (Appellant)
v.
Merck Frosst Canada & Co. (Respondent)
Indexed as: Merck Frosst Canada & Co. v. Canada (Minister of Health) (F.C.A.)
Federal Court of Appeal, Desjardins, Noël and Pelletier JJ.A.--Ottawa, June 7, 2005.
Access to Information -- Appeal from Federal Court decision ruling documents in question meeting exemption criteria under Access to Information Act, s. 20(1)(b) because information reflected therein not falling "as such" within public domain -- Also ruling reviewers' notes, correspondence between parties should not have been communicated under s. 20(1)(b) because written in response to respondent's request -- Once information within public domain, information no longer confidential even if in different form -- Form in which information presented cannot preclude disclosure thereof -- Information in reviewers' notes reflecting information not emanating from respondent -- Fact notes written pursuant to respondent's request not affecting situation--Appeal allowed.
statutes and regulations judicially
considered
Access to Information Act, R.S.C., 1985, c. A-1, s. 20(1)(b),(c).
| Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 52(b)(ii) (as am. idem, s. 50). |
cases judicially considered
referred to:
Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 37 Admin. L.R. 245; 27 C.P.R. (3d) 180; 27 F.T.R. 194 (F.C.T.D.); Merck Frosst Canada Inc. v. Canada (Minister of National Health) (1988), 20 C.I.P.R. 302; 30 C.P.R. (3d) 473; 20 F.T.R. 73 (F.C.T.D.); Merck Frosst Canada Inc. v. Canada (Minister of National Health), [2000] F.C.J. No. 1281 (T.D.) (QL); Canada Packers Inc. v. Canada (Minister of Agriculture), [1988] 1 F.C. 483 (T.D.); affd [1989] 1 F.C. 47; (1988), 53 D.L.R. (4th) 246; 32 Admin. L.R. 178; 26 C.P.R. (3d) 407; 87 N.R. 8 (C.A.).
APPEAL from a Federal Court decision ([2005] 1 F.C.R. 587; (2004), 33 C.P.R. (4th) 211; 256 F.T.R. 255; 2004 FC 959) ruling that documents in question met the criteria for the exemption of non-disclosure under paragraph 20(1)(b) of the Access to Information Act because the information they reflected did not fall "as such" within the public domain. Appeal allowed.
appearances:
Sébastien Gagné for appellant.
Karl Delwaide and Karine Joizil for respondent.
solicitors of record:
Deputy Attorney General of Canada for appellant.
Fasken Martineau DuMoulin LLP, Montréal, for respondent.
The following is the English version of the reasons for judgment of the Court delivered orally by
[1]Desjardins J.A.: The trial Judge erred in law in ruling that the documents in question meet the criteria for the exemption under paragraph 20(1)(b) of the Access to Information Act, R.S.C., 1985, c. A-1, as amended (the Act), because the information they reflect do not fall "as such" within the public domain (see paragraph 53 of the decision under appeal, indexed as Merck Frosst Canada & Co. v. Canada (Minister of Health), [2005] 1 F.C.R. 587 (F.C.)).
[2]In our view, once the information is within the public domain, it is no longer confidential, even if it differs in form.
[3]To rely on the form in which the information is presented in order to conclude that a document meets the criteria for the exemption under paragraph 20(1)(b) of the Act is necessarily contrary to the spirit of the Act and to the cases to date on this point (Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 37 Admin. L.R. 245 (F.C.T.D.), at pages 254-255; Merck Frosst Canada Inc. v. Canada (Minister of National Health) (1988), 20 C.I.P.R. 302 (F.C.T.D.), at pages 306-307; Merck Frosst Canada Inc. v. Canada (Minister of National Health), [2000] F.C.J. No. 1281 (T.D.) (QL), at paragraph 9). The important thing is the information. The form in which it is presented cannot preclude its disclosure.
[4]The trial Judge could not, therefore, find that because the information reflected in the documents is not within the public domain "as such", those pages are confidential.
[5]It is possible, as the respondent's counsel points out, that the trial Judge had in mind paragraph 20(1)(c), but that is not what he says and it is not what we understand from his judgment. If this was what the trial Judge had in mind, the route he took was such that his error becomes inextricable.
[6]The trial Judge could not find, either, that the reviewers' notes and correspondence between the parties should not have been communicated under paragraph 20(1)(b) of the Act solely because they were written up in response to the respondent's request. The information contained in the reviewers' notes reflects certain information that does not emanate from the respondent, and the fact that these notes were written pursuant to the respondent's request does not affect this situation in any way (Canada Packers Inc. v. Canada (Minister of Agriculture), [1988] 1 F.C. 483 (T.D.); affd [1989] 1 F.C. 47 (C.A.)).
[7]Having identified these errors, this Court could itself undertake a review of the thousands of documents in question to determine, on the one hand, whether paragraph 20(1)(c) should apply and, if not, whether either of the other exceptions is applicable.
[8]We do not think the interests of justice would be well served by this. In the circumstances, the appeal will be allowed with costs both at trial and on appeal, the decision of the trial Judge will be overturned and the matter will be returned to the Federal Court under subparagraph 52(b)(ii) (as am. by S.C. 2002, c. 8, s. 50) of the Federal Courts Act, R.S.C., 1985, c. F-7 [s. 1 (as am. by S.C. 2002, c. 8, s. 14)], for redetermination before another judge, who shall take into account these reasons.