ACCESS TO INFORMATION |
Wyeth-Ayerst Canada Inc. v. Canada (Attorney General)
A-130-02
2003 FCA 257, Richard C.J.
6/6/03
9 pp.
Appeal from T.D. order ([2002] F.C.J. No. 173) dismissing appellant's application for judicial review of Minister of Health's decision to release two letters pursuant to request under Access to Information Act--Letters written by appellant as part of submissions in relation to "Premarin", natural source estrogen product, in response to invitation to public to make representations regarding proposal to amend Regulations under Food and Drugs Act to create single standard applicable to both natural, synthetic source conjugated estrogen products--Appellant arguing reviewing judge chose, applied wrong standard of review; erred in concluding third party eligible to request information; failed to correctly apply evidence before her to exemptions from disclosure listed in Access to Information Act, s. 20(1)--Appeal dismissed-- Recent decision of S.C.C. in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 reinforced primacy of pragmatic, functional approach in review of administrative decisions--Dr. Q also stated as appellate court dealing with appellate review of lower court, not judicial review of administrative decision-maker, rules outlined in Housen v. Nikolaisen, [2002] 2 S.C.R. 235 apply-- Question of proper standard of review question of law, therefore Court of Appeal must determine whether reviewing judge has chosen, applied proper standard of review on correctness standard--Here, reviewing judge erred in choosing standard of review: rather than applying pragmatic and functional approach, reviewing judge relied solely on nature of decision to select standard of review--Accordingly, Court must substitute correct standard of review and assess Minister's decision on that basis--Based on pragmatic and functional approach, standard of review applicable to Minister's decision that of correctness--Here, absence of privative clause, in conjunction with explicit provision for Court to review refusals of access and importance ascribed by purpose clause in Act to independent review indicative of less deferential standard of review--As Minister has no greater expertise than Court, less differential standard of review warranted--Finally, nature of question one of mixed fact and law--While nature of question suggesting greater deference, when weighed against other three factors, standard of review of correctness warranted--Minister herein has provided sufficient evidence to discharge burden of demonstrating access requester satisfying eligibility requirements--Finally, appellant has not established that any of additional information should be exempted, therefore only parts of letter which Minister has agreed to excise will be redacted--Access to Information Act, R.S.C., 1985, c. A-1--Food and Drugs Act, R.S.C., 1985, c. F-27.