ARCHIVED - Info Source Bulletin Number 27

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Wyeth-Ayerst Canada Inc. v. Attorney General of Canada

Indexed as: Wyeth-Ayerst Canada Inc.
v. Canada (Attorney General)

File No.:	A-130-02
References:	2003 FCA 257; [2003] F.C.J. No. 916 (QL)
Date of decision:	June 6, 2003
Before:	Richard C.J., Noël and Sexton JJ.A.
Sections of ATIA / PA:	Ss. 4(1), 20(1), 44(1) Access to Information Act (ATIA)

Abstract

• Pragmatic and functional approach to be used to review administrative decisions
• Standard of correctness
• Eligibility of requester to make request under ATIA
• S. 20(1) criteria not met

Issues

1. What is the appropriate standard of review to be applied to the Minister's decision and by the appellate court?
2. Was the requester entitled to make his request access under the ATIA?
3. Was the evidence weighed correctly by the reviewing judge in relation to subs. 20(1)?

Facts

In 1997, Health Canada gave notice of proposed regulations that would create a single standard applicable to both natural and synthetic source conjugated estrogen products, thereby amending the Regulations under the Food and Drugs Act, R.S.C. 1985, c. F-27, s.1. Health Canada invited the public to make representations regarding the proposed regulations.

Wyeth-Ayerst responded to Health Canada's request by sending two letters in relation to Premarin®, a natural source estrogen product. Shortly thereafter, a request pursuant to the Access to Information Act was received by Health Canada's Access to Information and Privacy Office. Health Canada advised Wyeth-Ayerst that the two letters would be released, a decision disputed by Wyeth-Ayerst who made representations to the ATIP Office on the basis that the information fell within the exemptions set out in subs. 20(1) of the ATIA. Since the ATIP Office disagreed, Wyeth-Ayerst sought judicial review of the decision on the basis of s. 18.1 of the Federal Court Act.

The reviewing judge dismissed the application (2003 FCT 133; [2003] F.C.J. No. 173 (QL)). The reviewing judge held that there was sufficient evidence to establish that the requester was eligible to make his request under the ATIA. She further held that since the Minister's decision to disclose was an exercise of discretion, the applicable standard of review was that of deference. Based on that standard, the judge saw no evidence to establish that the information was entitled to the exemptions pursuant to subs. 20(1) of the ATIA.

This is an appeal of that decision.

Decision

The appeal was dismissed with costs.

Reasons

Issue 1—Standard of review

Basing itself on the Supreme Court of Canada decision in Dr. Q.^[5] the Court of Appeal reiterated the primacy of the pragmatic and functional approach in the review of administrative decisions. It is not acceptable to base the standard of review on a single criterion, such as jurisdiction or discretion. Rather, whenever a court is to review a decision of an administrative body, the pragmatic and functional approach demands a more nuanced analysis that considers a number of factors (Dr. Q., para. 25).

At the appellate level, since the question of the proper standard of review is a question of law, the Court of Appeal must determine, on a correctness standard, whether the reviewing judge erred in applying the standard of review. If the reviewing judge did not apply the proper standard of review, it is up to the appellate court to substitute the appropriate standard of review and assess or remit the administrative body's decision on that basis.

Based on the pragmatic and functional approach, the Court held that the standard of review applicable to the Minister's decision is correctness. In the Court's view, the statutory right to review supports a more searching standard. In reaching this conclusion, the Court looked at the following elements: (1) the absence of a privative clause in the ATIA; (2) the explicit review provision found in subs. 44(1); and (3) the importance ascribed by subs. 2(1) (the purpose clause) to the independent review of refusals to give access.

The Court's skills in interpreting and applying statutory exemptions, combined with the fact that subs. 20(1) is a mandatory exemption (as opposed to a discretionary one) and the fact that the nature of the question in the instant case is one of mixed fact and law, all pointed to a less deferential standard of review.

Issue 2—Eligibility of the requester

Wyeth-Ayerst argued that the records could not be disclosed since sufficient evidence was not provided by the Minister to demonstrate that the access requester had satisfied the eligibility requirements pursuant to subs. 4(1) of the ATIA. However, following the decision in Cyanamid Canada Inc.,^[6] the Court determined that the government institution must be reasonably satisfied that the requester is qualified. In the present case, the Minister provided sufficient evidence to discharge his burden. The affidavit evidence of the ATIP officer showed that she had turned her mind to the eligibility of the requester and, based on the information before her, concluded that the requester was entitled to access.

Issue 3—Applicability of the exemptions

Since it is well established that the party requesting the exemption bears the burden of proof and that exceptions to access should be limited, it was up to Wyeth-Ayerst to provide the Minister with a reasonable explanation for exempting each record. Affidavit evidence that is vague or speculative in nature cannot be relied upon. In the present case, the affidavit failed to elaborate on how or why the information contained in the letters is confidential. Therefore, since Wyeth-Ayerst did not establish that the information should be exempted pursuant to subs. 20(1), only the parts of the letter that the Minister has agreed to exercise are to be redacted.

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