Date: 20020124
Docket: A-542-00
Neutral citation: 2002 FCA 35
CORAM: RICHARD C.J.
EVANS J.A.
BETWEEN:
MERCK FROSST CANADA & CO.
Appellant
and
THE MINISTER OF NATIONAL HEALTH
Respondent
Heard at Montreal, Quebec, on January 24, 2002.
Judgment delivered from the Bench at Montreal, Quebec, on January 24, 2002.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A.
Date: 20020124
Docket: A-542-00
Neutral citation: 2002 FCA 35
CORAM: RICHARD C.J.
STONE J.A.
EVANS J.A.
BETWEEN:
MERCK FROSST CANADA & CO.
Appellant
and
THE MINISTER OF NATIONAL HEALTH
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Montreal, Quebec
on January 24, 2002.)
[1] Pursuant to a request for access to information made under the Access to Information Act, R.S.C. 1985, c. A-1, the Access to Information and Privacy Centre of Health Canada made two decisions to release certain records in its possession submitted by Merck Frosst Canada Inc. as part of its New Drug Submission for a drug, FOSAMAX.
[2] Merck Frosst applied to the Trial Division of this Court for a review of these decisions under section 44 of the Act, on the ground that disclosure of this information was prohibited by paragraphs 20(1)(a), (b) and (c). This is an appeal by Merck Frosst from an order of a Judge of the Trial Division, dated August 14, 2000, dismissing its application.
[3] The only issue that counsel for the appellant pursued in oral argument before us was that the appellant had discharged its burden of proving that certain information relating to the chemistry and manufacturing of the drug was confidential information within the meaning of paragraph 20(1)(b) and could not be disclosed by Health Canada.
[4] While the reasons of the Judge do not contain a specific finding with regard to this particular information, he stated (at paragraph 6 of his reasons) that he had carefully examined all the relevant documents before him and had considered the information requested in the exemptions relied on by Merck Frosst. Further, with respect to the exemption claimed under paragraph 20(1)(b), the Judge concluded (at paragraph 13 of his reasons) that "the applicant has failed to demonstrate that the disputed information is confidential".
[5] We are all of the opinion that there was ample evidence before the Judge to support a finding that the appellant had not discharged its burden of proving that information relating to the chemistry and manufacturing data was "confidential information" within the meaning of 20(1)(b).
[6] We would adopt as apposite to this appeal the following words of Hugessen J.A., writing for the Court in Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services) (1990), 107 N.R. 89, at paragraph 6 (F.C.A.):
We can see no indication that the Judge did not carefully look at and weigh the material before him (indeed, the contrary appears to be the case), and what the appellant is really asking us to do is to substitute our appreciation for his; this we will not do.
In the absence of a palpable and overriding error, a trial Judge's findings of fact should not be disturbed on appeal. There was no such error here.
[7] For these reasons, the appeal will be dismissed with costs.
"John M. Evans"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-542-00
STYLE OF CAUSE: Merck Frosst Canada & Co. v. The Minister of National Health
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 24, 2002
REASONS FOR JUDGMENT OF THE COURT: Richard C.J., Stone and Evans JJ.A.
RENDERED FROM THE BENCH BY: Evans J.A.
DATED: January 24, 2002
APPEARANCES:
Mr. Louis Brousseau FOR THE APPELLANT
Mr. Jan Brongers FOR THE RESPONDENT
SOLICITORS OF RECORD:
McCarthy Tétrault FOR THE APPELLANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada