Digests

Rubin v. Canada (Minister of Health)

T-2408-98

2001 FCT 929, Nadon J.

21/8/01

29 pp.

Application for judicial review pursuant to Access to Information Act, s. 41 of Minister's refusal to give access to parts of special Health Canada (HC) review on safety of calcium channel blockers (CCB drugs)--Information Commissioner concluded exempted information withheld confidential commercial, scientific or technical information supplied to HC by various third parties, information having been treated consistently in confidential manner by third party and HC--Issues whether respondent justified in withholding portions of requested report pursuant to Act, s. 20(1)(b), (c); whether respondent's discretion under Act, s. 20(6) properly exercised; whether respondent justified in withholding portions of requested report pursuant to Act, s. 13(1)(a)--Application dismissed--Court must review matter de novo--With respect to applications for judicial review under Act, s. 41, onus resting on respondent to convince Court, with direct evidence, material requested by applicant should not be disclosed and can benefit from exemptions set out in Act, s. 20(1)--Standard of proof to be applied in respect of Act, s. 20(1) balance of probabilities--Exemption from disclosure under Act, s. 20(1)(b) herein meeting all four of criteria established in Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 F.T.R. 194 (T.D.): information (1) financial, commercial, scientific or technical; (2) confidential; (3) supplied to government institution by third party; (4) treated consistently in confidential manner by third party--Applicant contended respondent did not try to establish on its own that information in question still confidential, but relied on statements to that effect by third parties--Respondent must not only demonstrate information consistently treated as confidential by third parties, but also that information kept confidential by both parties--However, no obligation on part of respondent to search all publications, journals, etc. to verify if information released in any shape or form to public, while sources of information, third parties, maintain that information still confidential--On review of material herein, respondent correct in refusing disclosure under Act, s. 20(1)(b)--Act, s. 20(6) allowing head of government institution to exercise discretion and disclose material that should be exempted from disclosure under Act, s. 20(1)(b), (c) or (d) if believes public interest in disclosure outweighs any prejudice to third party--Applying Hutton v. Canada (Minister of Natural Resources) (1997), 137 F.T.R. 110 (T.D.), no reason to conclude decision not to rely on discretionary authority to disclose under Act, s. 20(6) and not to sever under Act, s. 25 other than reasonable--Discretion exercised in good faith--Exercise of respondent's discretion not to disclose information pursuant to Act, s. 20(6) proper--Respondent precluded from relying on Act, s. 13 in Court: since respondent had not mentioned provision in original notice and had dropped its reliance on Act, s. 13 at time of Commissioner's investigation, could not, few months later, suddenly invoke provision again--Access to Information Act, R.S.C., 1985, c. A-1, ss. 13, 20(1),(6), 25, 41.