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FCA allows appeal of FC decision exempting FORTEKOR information from Access to Information (ATI) disclosure

On September 24, 2021, the Federal Court of Appeal (FCA) allowed the Minister’s appeal of a Federal Court (FC) decision finding that certain records relating to Elanco’s FORTEKOR (benazepril) were exempt from disclosure under the Access to Information Act (the Act): Canada (Health) v Elanco Canada Limited, 2021 FCA 191. The FCA remitted the matter to the FC for reconsideration of several issues.

In its decision, the FCA additionally clarified that the appellate standard of review in Housen v Nikolaisen, 2002 SCC 33 (Housen) applies to appeals from FC decisions made under s. 44(1) of the Act.

FC decision

As previously reported, in early 2020 the FC granted Elanco’s application for judicial review of Health Canada’s decision to release records related to its drug submission for FORTEKOR, a veterinary drug. The FC agreed with Elanco that certain portions of the records were subject to the exemptions in s. 20(1) of the Act and should not be disclosed.

The standard of review

The FCA resolved the debate regarding whether Housen or Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 (Agraira) applies to appeals of FC decisions in applications under s. 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 FCA 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 s. 44.1, added in 2019, such application is “a new proceeding.” While the FCA has previously adopted the Agraira standard in deciding appeals from applications under s. 44(1), the enactment of s. 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 the s. 20(1) exemptions to disclosure

The FCA found no reviewable error in the FC’s application of s. 20(1)(a), (b), or (c) of the Act, finding many of the Minister’s arguments to be improper requests to re-weigh the evidence before the lower court.

However, the FCA found a palpable and overriding error in the FC’s application of s. 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 FC had not specifically identified the information to which s. 20(1)(d) applied, it was unclear whether that information should therefore be disclosed or whether it was separately exempt from disclosure under s. 20(1)(a), (b), or (c).

In addition, the FCA noted that the FC’s reasons did not indicate whether information in the category “Identity of Suppliers”, was exempt from disclosure.

Severance

The FCA also took issue with the way in which the FC’s judgment was framed. The judgment declared that “Health Canada’s decision to disclose the Records is invalid”, which implies 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 s. 25 of the Act requires the disclosure of information that does not contain or can reasonably be severed from exempt information.

FCA judgment

The FCA therefore remitted the decision to the FC to:

  • determine whether any information was exempt from disclosure solely by virtue of s. 20(1)(d) of the Act;
  • determine whether information relating to the “Identity of Suppliers” was exempt from disclosure;
  • 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 s. 20 of the Act.