Federal Court of Appeal
On 24 September 2021, the Federal Court of Appeal allowed the minister's appeal of a Federal Court decision finding that certain records relating to Elanco's Fortekor (benazepril) were exempt from disclosure under the Access to Information Act (the Act).(1) The Federal Court of Appeal remitted the matter to the Federal Court for reconsideration of several issues.
In its decision, the Federal Court of Appeal additionally clarified that the appellate standard of review in Housen v Nikolaisen(2) applies to appeals from Federal Court decisions made under section 44(1) of the Act.
In early 2020 the Federal Court granted Elanco's application for judicial review of Health Canada's decision to release records relating to its drug submission for Fortekor, a veterinary drug.(3) The Federal Court agreed with Elanco that certain portions of the records were subject to the exemptions in section 20(1) of the Act and should not be disclosed.
Standard of review
The Federal Court of Appeal resolved the debate regarding whether Housen or Agraira v Canada (Public Safety and Emergency Preparedness)(4) applies to appeals of Federal Court decisions in applications under section 44(1) of the Act. The former provides the appellate standard (correctness for questions of law, palpable and overriding error for questions of fact or mixed fact and law), while the latter prescribes the standard applicable to appeals from applications for judicial review (the Federal Court of Appeal must "step into the shoes" of the court below to verify that it correctly applied the administrative standard of review).
Section 44(1) permits third parties whose records will be disclosed under the Act to "apply to the Court for a review of the matter". Per section 44.1, added in 2019, such application is "a new proceeding". While the Federal Court of Appeal has previously adopted the Agraira standard in deciding appeals from applications under section 44(1), the enactment of section 44.1 clarified that the underlying proceeding is not a judicial review, but rather a new proceeding and therefore subject to the Housen standard.
Application of section 20(1) exemptions to disclosure
The Federal Court of Appeal found no reviewable error in the Federal Court's application of section 20(1)(a), (b) or (c) of the Act, finding many of the minister's arguments to be improper requests to reweigh the evidence before the lower court.
However, the Federal Court of Appeal found a palpable and overriding error in the Federal Court's application of section 20(1)(d), which applies where the disclosure of the requested information could reasonably be expected to interfere with contractual or other negotiations. A party relying on this exemption must adduce evidence demonstrating that actual contractual negotiations other than daily business operations would be obstructed by disclosure; Elanco's evidence failed to do so. However, because the Federal Court had not specifically identified the information to which section 20(1)(d) applied, it was unclear whether that information should therefore be disclosed or whether it was separately exempt from disclosure under section 20(1)(a), (b) or (c).
In addition, the Federal Court of Appeal noted that the Federal Court's reasons did not indicate whether information in the category "Identity of Suppliers" was exempt from disclosure.
The Federal Court of Appeal also took issue with the way in which the Federal Court's judgment was framed. The judgment declared that "Health Canada's decision to disclose the Records is invalid", which implied that the requested records in their entirety, rather than portions thereof, were exempt from disclosure. Elanco conceded that several portions of the records were not confidential and could be disclosed, and section 25 of the Act requires the disclosure of information that does not contain or can reasonably be severed from exempt information.
The Federal Court of Appeal therefore remitted the decision to the Federal Court to:
- determine whether any information was exempt from disclosure solely by virtue of section 20(1)(d) of the Act;
- determine whether information relating to the "Identity of Suppliers" was exempt from disclosure; and
- issue a judgment requiring Health Canada to disclose any part of the requested records that do not contain or can reasonably be severed from information exempt from disclosure under section 20 of the Act.
For further information on this topic please contact Abigail Smith at Smart & Biggar LLP by telephone (+1 416 595 2768) or email ([email protected]). The Smart & Biggar website can be accessed at www.smartbiggar.ca.
(1) Canada (Health) v Elanco Canada Limited, 2021 FCA 191.
(3) For further information, please see "Federal Court blocks Health Canada from disclosing veterinary drug submission records pursuant to ATI request".