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Info Source Bulletin Number 31A - Court Case Summaries
Merck Frosst Canada Ltée v. Minister of Health
2006 FC 1201
Federal Court
Date of Decision: October 12, 2006
Sections(s): Sections 20(1), 25, 27(1), (2), 28 and 44(1) ATIA
Origin
Section 44 ATIA application for judicial review of a decision by Health Canada to disclose records related to a new drug marketed by Merck.
Issues
1st Issue
Whether Merck is entitled to obtain a declaratory order against the legality of the process Health Canada's ATIP Office followed during the processing of the access request?
2nd Issue
Whether, if the answer to the preceding question is in the affirmative, the process Health Canada followed during the processing of the access request is consistent with the Act?
3rd Issue
Whether Health Canada's decision to disclose the records relevant to the access request is consistent with the exceptions provided for in subsection 20(1) of the Act?
Facts
Health Canada (HC) received a request for access to documentation concerning the new drug called Singulair. Health Canada identified the documents requested (547 pages). In considering the application of section 20 ATIA, HC consulted Merck to seek comment about the disclosure of certain documents in accordance with section 27 of the ATIA.
As a first step, on August 16, 2000, some documents were therefore sent to Merck with notice of consultation and about twenty pages of documentation were disclosed to the requester without prior notice to Merck.
As a second step, on January 2, 2001, after undertaking the necessary consultations with Merck, Health Canada informed Merck of its decision to disclose certain records despite Merck's representations and objections. Merck therefore filed an application for judicial review of that decision. Harrington J. of the Federal Court allowed the application in part and concluded that Health Canada had an obligation to refuse the disclosure of certain records in accordance with subsection 20(1) and should not have disclosed certain other records of Merck without consultation. To that end, the Judge concluded that Merck was entitled to obtain a declaratory order against the disclosure of certain records by Health Canada without consultation. The Federal Court of Appeal overturned that order and returned the matter to the Federal Court Trial Division for redetermination under paragraph 52(b)(ii) of the Federal Courts Act. It is this redetermination that is at issue here.
Decision
The application for judicial review was allowed in part.
Reasons
First issue
Whether Merck is entitled to obtain a declaratory order against the legality of the process Health Canada followed during the processing of the access request?
The Court found that section 44 of the ATIA places no obstacle in the way of reviewing the process that led to the decision and the merits of the decision as part of the application for judicial review. Noting the procedural arguments put forward by Health Canada that the same access request was the subject of two separate decisions (the first one on August 16, 2000, and the second one on January 2, 2001) and that only one be subject to judicial review by the Court, the Court concludes that Merck is entitled to obtain a declaratory order against the legality of the disclosure of records by Health Canada without consultation that occurred on August 16, 2000.
With respect to the decision of January 2, 2001, which led to the disclosure of certain records after consultation, the Court concluded that some of the records relevant to the access request should not have been disclosed under subsection 20(1) of the ATIA. Therefore, the Court also concluded that Merck was entitled to obtain a declaratory order against the legality of the process imposing on Merck the burden of proving that Health Canada should have refused to disclose any record under subsection 20(1) of the ATIA.
Second issue
Whether, if the answer to the preceding question is in the affirmative, the process Health Canada's ATIP Office followed during the processing of the access request is consistent with the Act?
As for the decision to disclose some of Merck's records without consultation, the Court rejects the argument that only Health Canada could properly decide on the applicability of subsection 20(1) of the ATIA to certain documents of Merck, and that thus Health Canada decided not to consult the third party before disclosing documents. According to the Court, such an interpretation would give Health Canada the power to determine the inapplicability of subsection 20(1) which would protect it from court supervision and could cause irreparable harm to the third party concerned by the access request (Merck). The Court therefore concludes that the disclosure without consultation by Health Canada of Merck's documents was contrary to the spirit of section 20 of the ATIA and should not have occurred.
As for the consultation process undertaken by Health Canada and imposing on Merck the burden of proving that certain records should not have been disclosed under subsection 20(1), the Court found that that process was not unlawful. According to the Court, Merck is in a better position than Health Canada to identify the excerpts to which subsection 20(1) applies as it is its own documentation. Such a burden imposed on the third party is not disproportionate considering the superior expertise of the third party (Merck in this case) and the importance it is likely to attach to the protection of its documentation.
Third issue
Whether Health Canada's decision to disclose the records relevant to the access request is consistent with the exceptions provided for in subsection 20(1) of the Act?
The Court concluded that the pages identified by Merck as containing information not available "as such" in the public domain are not excluded from disclosure under paragraph 20(1)(c) of the ATIA. The Court however concluded that the disclosure of records containing more specific and detailed information than information already in the public domain should have been refused under paragraph 20(1)(c) of the ATIA.
The Court identified pages of records containing information constituting trade secrets and concludes that the disclosure of those records should have been refused under paragraph 20(1)(a) of the ATIA. The Court identified pages containing confidential information treated in a confidential manner by Merck and not in the public domain and concluded that the disclosure of those records should have been refused under paragraph 20(1)(b) of the ATIA.
The Court identified pages containing information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, the applicant and concluded that those records should not have been disclosed under paragraph 20(1)(c) of the ATIA.
Finally, the Court found that except where a specific excerpt from a page is mentioned and can be easily identifiable, under section 25 of the ATIA, the entire page should be deleted.
As of November 18th, 2008, this decision is under appeal at the Federal Court of Appeal.
