Canada (Minister of Health) v. Merck Frosst Canada Ltd.


An English translation of a decision relating to two appeals issued in May 2009 was issued by the Court. The Minister of Health appealed, and Merck cross-appealed, a decision relating to the Access to Information Act. In both cases, a competitor to Merck made a request for information from the Minister of Health. The Minister disclosed a number of records to the requester, without giving Merck notice of the disclosure. Merck was provided with the opportunity to make submissions with respect to additional records.

The Court of Appeal found that the trial judge did not err in concluding that the Minister was not required to give notice to Merck prior to disclosing the records where it determined no exemption under the Act applied. The Court of Appeal found that the trial judge erred in determining that some records contained information that constituted a trade secret on the basis that Merck did not meet its burden to demonstrate the information constituted a trade secret, which is a high threshold. Finally, the Court of Appeal held that the evidence did not establish that disclosure of the impugned information would result in the probability of harm to Merck, as opposed to the mere possibility. The appeals were allowed, and the cross-appeals were dismissed.