Date: 20050509
Docket: T-720-02
Citation: 2005 FC 648
BETWEEN:
ASTRAZENECA CANADA INC.
Applicant
and
HEALTH CANADA, THE MINISTER OF HEALTH
and THE ATTORNEY GENERAL OF CANADA
Respondents
SUPPLEMENTAL REASONS FOR ORDER
PHELAN J.
[1] This Court granted a motion for reconsideration to deal with the issue (which the Court had initially understood as no longer being in dispute) of whether the Minister had the jurisdiction to "unsever" information (disclose information) which the Minister had previously decided should be severed (not disclosed). The issue is whether the Minister can change his/her mind and disclose information which the Minister had previously decided fit within one or more of the exemptions from disclosure under section 20(1) of the Act.
[2] During the course of this litigation under section 44 of the Act, the Respondent decided, after reviewing the affidavit of an officer of the Applicant, that certain information should now be disclosed. This decision to disclose is a reversal of the Respondent's earlier decision that this specific information was exempt from disclosure.
[3] The information at issue is also claimed by the Applicant to fall into one or more of the ten (10) descriptive categories of documents to which section 20(1) applies.
[4] The Applicant argues that the Minister has no jurisdiction to make a second decision to disclose and that the original decision cannot be altered during the review of the decision. It puts its case succinctly that the Minister's decision to disclose cannot be made a "moving target". The Applicant relies upon the decision of Matol Botanical International Inc. v. Canada (Minister of National Health and Welfare) (1998), 84 F.T.R. 168 (F.C.T.D.).
[5] For the reasons given by Justice Noël in Matol, I agree that the Minister cannot initiate another disclosure process after the Minister has made the decision not to disclose some of the information requested. There must be some other triggering event provided for under the Act to allow for this additional disclosure.
[6] The Act provides an elaborate process to deal with third party information. The Act sets up a tension between the right of the public to know and the right of a third party to keep its affairs confidential. The Act provides for two opportunities where the Minister may change the original decision or at least take a position inconsistent with the original decision.
[7] The first is found in section 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.
[8] The second is inherent to the Court review process under section 44. It has been held in such cases as Air Atonabee, 3430901 Canada Inc. v. Canada (Minister of Industry), [2001] F.C.A. 254 and Wyeth-Ayerst Canada Inc. v. Canada (Attorney General), [2003] F.C.J. No. 916 that the Court review to be conducted is a de novo review in which the standard of review is correctness.
[9] In my view, 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 - no doubt contending that the Minister was correct in the first place and that there is no good reason in fact, law or both, for the change of mind.
[10] It is for the Court to decide whether the exemption from disclosure is truly applicable and whether a requester is entitled to the information.
[11] Therefore the Minister cannot, on its own initiative, reverse itself and start the disclosure process anew with the necessary notices, representations and other procedural steps. However, the Minister cannot be forced to defend in this Court, what it now believes is, an indefensible position regarding the particular information.
[12] In the present case, the Minister was entitled to change its position and argue that the information should be disclosed. The Minister is neither functus nor estopped 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 section 20 exemption or it does not, based upon the evidence before the Court.
[13] The information which the Minister now says can be unsevered has been assessed against the criteria in section 20 as more fully described in other portions of the Reasons.
MISCELLANEOUS
[14] As indicated in the Court's order granting reconsideration, paragraph 7 of the Reasons will be amended to read "Can Reg Inc." and the word "not" shall be inserted in paragraph 56 of the original Reasons between the words "does" and "impugne".
[15] For ease of reference a consolidated version of the Reasons will issue incorporating these Supplemental Reasons into the original reasons.
(s) "Michael L. Phelan"
Judge
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-720-02
STYLE OF CAUSE: ASTRAZENECA CANADA INC. v. HEALTH CANADA et al
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: Dealt with without personal appearances
REASONS FOR ORDER BY: Phelan J.
DATED: May 9, 2005
SUBMISSIONS:
Mr. J. Sheldon Hamilton
Mr. James Pan FOR THE APPLICANT
Mr. Michael Roach FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Smart & Biggar
Toronto, Ontario FOR THE PLAINTIFF
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE DEFENDANTS