Health Canada’s 'public domain' information was unsubstantiated

Privacy and Freedom of Information – Freedom of information – Federal legislation

Unknown third party requested records under Access to Information Act, relating to applicant pharmaceutical company’s submissions approval of certain veterinary medication, and Health Canada rejected most of applicant’s proposed redactions. Applicant applied for order prohibiting Health Canada from disclosing information about their veterinary medication. Application granted. Health Canada’s position that information was already in public domain was misleading, as applicant’s first-hand evidence demonstrated that such relied-upon foreign information did not relate to same medication. Applicant did not rely upon any of this “public domain” information when it sought approval to bring drug to market in Canada. Health Canada did not offer any evidence to confirm that information from foreign jurisdictions, notwithstanding simple word matches, was comparable and applicable to veterinary medication at issue here as it failed to conduct more in-depth analysis . Fact that word appears in public domain did not equate to proof of applicant’s use of product in relation to medication at issue. Health Canada’s argument that applicant’s confidentiality agreements could not supersede statutory provisions was contrary to Act’s specific protection of confidential information where it met criteria. Applicant’s research and development had made it industry leader in this medication and allowing disclosure to competitors could reasonably be expected to result in financial harm. Information for which applicant established it was contractually bound to maintain confidential nature was entitled to protection. Applicant’s first-hand evidence from employee was preferred to Health Canada’s unsubstantiated “public domain” information that, when scrutinized, did not support claims that it was synonymous with information sought to be disclosed. Public domain information related to different medications with different compounds in different jurisdictions. Proposed redactions were accepted and Health Canada’s decision to disclose records was invalid.

Elanco Canada Limited v. Canada (Health) (2020), 2020 CarswellNat 75, 2019 FC 1455, Ann Marie McDonald J. (F.C.).

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