The Federal Court of Appeal (FCA) has set aside a decision of the Federal Court (FC), which had invalidated Health Canada’s decision to disclose records in response to a request (ATI Request) made pursuant to the Access to Information Act (the Act). The FCA remitted the matter to the FC for redetermination.
As we previously reported, the ATI Request concerned Health Canada submission documents for Fortekor, an Elanco Canada Limited (Elanco) veterinary drug product. Health Canada notified Elanco of the records it proposed to disclose. Elanco objected to the disclosure, relying on the exemptions in subsection 20(1) of the Act. On judicial review, the FC concluded the information was exempt from disclosure on a number of grounds under that provision.
Standard of Review
The FCA confirmed that on an appeal from a judicial review decision of the Federal Court under section 44 of the Act, the normal appellate standard of review in Housen  applies: questions of law are reviewed on a correctness standard, while questions of fact or mixed fact and law are reviewed on the standard of “palpable and overriding error”. Unlike in other areas of judicial review, the Court of Appeal will not apply the Agraira  standard of review and “step into the shoes” of the Federal Court judge.
Breadth and Severance
The FCA found that the FC’s judgment was too broad because it invalidated the decision to disclose all of the “Records”. In the judgment, “Records” had been defined to mean the entire third-party request, which included documents that Elanco conceded were not confidential and could be disclosed. The FCA noted that the Act requires the disclosure of information that can reasonably be severed from the information that is not to be disclosed.
Contract or Negotiation Exemptions
The FCA found no error in the FC’s findings in relation to the exemptions for trade secrets, confidential information and prejudice to competitive position (paragraphs 20(1)(a)-(c) of the Act). However, the FCA found that the FC’s reasons did not support a conclusion of an exemption under paragraph 20(1)(d) of the Act, which provides an exemption if there is evidence the disclosure could “reasonably interfere with contractual or other negotiations of a third party”.
The FC’s finding under paragraph 20(1)(d) relied on specific paragraphs of Elanco’s reply affidavit, which the FCA found did not contain sufficient evidence about contractual negotiations or the effects of disclosure to meet the statutory test. The FCA noted that although the test under paragraph 20(1)(d) was not satisfied, the relevant portions of the ATI Request may still be exempt from disclosure under one of the other provisions.
The FCA also found that it was not clear from the FC’s reasons whether it had actually considered one category of information (“Identity of Suppliers”) or, if it had done so, which provision of subsection 20(1) was applied to exempt it from disclosure.
The FCA remitted the matter to the FC to:
- determine what information, if any, was exempt from disclosure only under paragraph 20(1)(d);
- determine if the “Identity of suppliers” is exempt from disclosure; and
- issue a judgment that requires Health Canada to disclose any part of the record that does not contain, and can reasonably be severed from, any information or material exempt from disclosure under section 20 of the Act.
Costs were awarded to Elanco.
Canada (Health) v. Elanco Canada Limited, 2021 FCA 191
 Housen v. Nikolaisen, 2002 SCC 33.
 Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36.