Merck Frosst Canada Ltd. v. Canada (Minister of Health) 2012 SCC 3
Crown - Examination of public documents - Freedom of information - Legislation - Disclosure - Confidential information supplied by third party
Health Canada received two access to information requests relating to a certain new drug submission (NDS) and supplementary new drug submission (SNDS) filed by pharmaceutical company Merck Frosst Canada Ltd. (Merck). Health Canada identified several hundred pages in response to each request. A series of disputes arose between Merck and Health Canada about what information was exempt from disclosure under s. 20(1) of the Access to Information Act. Health Canada disclosed some pages without notifying Merck. Merck applied for judicial review against Health Canada’s decisions, under s. 44 of the Act.
The Federal Court, in decisions reported at  F.T.R. Uned. 943 and at (2006), 301 F.T.R. 241, found that disclosure by Health Canada without prior notice to Merck contravened s. 20(1) of the Act, and that some 200 pages were exempt from disclosure, while the remaining pages could be disclosed. The court also held that it would be extremely difficult to sever and disclose non-exempt information pursuant to s. 25 of the Act. Health Canada appealed the decisions. Merck cross-appealed.
The Federal Court of Appeal, in a decision reported at 400 N.R. 1, allowed Health Canada’s appeals and dismissed Merck’s cross-appeals. The court ordered that all of the remaining pages at issue for both the NDS and the SNDS be disclosed. Merck appealed. The issues related to the particular claims for exemption, as well as: (a) the standard of appellate review; (b) the threshold for triggering the duty to give a third party notice of the access request and what was required in deciding whether or not to give notice; and (c) the applicable burden and standard of proof on a third party claiming a s. 20(1) exemption.
The Supreme Court of Canada, Deschamps, Abella and Rothstein, J.J. dissenting, dismissed the appeals.