Information Commissioner of Canada v. The Minister of Health, 2015 FC 789 

Drug: pantoprazole

The Office of the Information Commissioner of Canada (OICC) sought judicial review of the Minister of Health’s refusal to disclose information responsive to Apotex’s request for records related to the processing of an Abbreviated New Drug Submission (ANDS) and the issuance of a Notice of Compliance (NOC). The Judicial Review was largely dismissed.

Apotex had started litigation against the Government, claiming damages due to refusal or delay in approving drug submissions. It made an Access to Information (ATI) request relating to one of the drugs at issue. 47 pages were produced in their entirety, and 8 further pages were produced in redacted versions, based on solicitor- client privilege. Apotex filed a complaint with the OICC. The OICC investigated, reported the results to Apotex, and started this proceeding, with Apotex’s consent, after Health Canada maintained its position that the solicitor-client exemption applies.

The Court held that the question of whether the Minister properly applied the exemption of solicitor-client privilege is reviewable on a standard of correctness, and the question of whether the Minister’s discretionary decision to refuse disclosure is reasonable is reviewable on a standard of reasonableness. The Court then considered the solicitor-client exemption and found that it applied to all but one part of one of the documents. The Court held that there was no abuse of discretion, and that the severance was properly exercised. One further sentence was ordered disclosed.