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Info Source Bulletin Number 29
AstraZeneca Canada Inc. v. Health Canada, Minister of Health and Attorney General of Canada
Indexed as: AstraZeneca Canada Inc. v. Canada
(Minister of Health)
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File No.: |
T-720-02 |
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Reference: |
2005 FC 648 |
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Date of decision: |
May 9, 2005 |
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Before: |
Phelan J. |
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Sections of ATIA / PA: |
Ss. 20(1), 25, 29, 44 Access to Information Act (ATIA) |
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Abstract
- Minister may change original decision not to disclose information in s. 29 ATIA or s. 44 ATIA circumstances
Issue
Whether the Minister can reverse his/her initial decision not to disclose information on the basis that the information fell within s. 20(1) ATIA?
Facts
During the course of this litigation under s. 44[6] of the ATIA, the Minister decided, after reviewing the affidavit of an officer of the third party, that certain information which the Minister initially withheld from disclosure on the basis of subs. 20(1) should be disclosed. The third party argues that the Minister has no jurisdiction to make a second decision to disclose and that the original decision cannot be altered during the judicial review of the decision. AstraZeneca relies on Matol Botanical International Inc. v. Canada (Minister of National Health and Welfare) (1998), 84 F.T.R. 168 (F.C.T.D.).
Decision
The Court held that the Minister was entitled to reverse his/her original position and argue that the information should be disclosed.[7]
Reasons
The ATIA provides for two circumstances where the Minister may change his/her original decision or at least take a position inconsistent with the original decision.
The first is found in s. 29 where the Minister may, upon recommendation of the Information Commissioner, decide to disclose information which the Minister had originally decided was exempt from disclosure.
The second is inherent to the Court review process under s. 44. It has been held in such cases as Air Atonabee Ltd. v. Canada (Minister of Transport) (1997), 27 F.T.R. 194 (F.C.T.D.), 3430901 Canada Inc. v. Canada (Minister of Industry), 2001 FCA 254 and Wyeth-Ayerst Canada Inc. v. Canada (Attorney General), 2003 FCA 257 that the review to be conducted by the Court is a de novo review in which the standard of review is correctness. In the context of that review, a Minister is not required to sustain all or a part of the decision which the Minister no longer believes is sustainable. The Minister is free to argue that the exemption from disclosure no longer applies to the particular information. A third party is free to make of it what they will in respect of the Minister's change of position. It is for the Court to decide whether the exemption from disclosure is truly applicable and whether a requester is entitled to the information.
Therefore the Minister cannot, on its own initiative, reverse himself/herself and start the disclosure process anew with the necessary notices, representations and other procedural steps.
In the present case, the Minister was entitled to change his/her position and argue that the information should be disclosed. The Minister is neither functus nor stopped and the information cannot be exempt from disclosure solely on the basis that the Minister made an earlier and different decision. The information either falls within the s. 20 exemption or it does not, based upon the evidence before the Court.[8]
Comments
AstraZeneca has filed an appeal against this decision.
