T-634-89
Glaxo Canada Inc. (Applicant)
v.
Minister of National Health and Welfare
(Respondent)
INDEXED AS: GLAXO CANADA INC. v. CANADA (MINISTER OF
NATIONAL HEALTH AND WELFARE) (T.D.)
Trial Division, Muldoon J.—Toronto, January 12;
Ottawa, January 15, 1990.
Access to information — Application for review of decision
to disclose records requested in severed form — Glaxo object
ing to disclosure of severed portions under s. 20(1)(a) and (b)
— Preliminary objection no evidence condition precedent set
out in Act, s. 4(1) requiring requester to be Canadian citizen or
permanent resident, met — Pursuant to s. 4(2) Governor in
Council enacting Order in Council giving right of access to all
individuals present in Canada — Glaxo's challenge predating
Order in Council — Determination of statutory prerequisites
resting upon administrators of legislation — Glaxo having
vested right under s. 4(1) to have information denied until
government institution head proving requester Canadian citi
zen or permanent resident — Order in Council not overriding
vested rights accorded by s. 4(1) and asserted by applicant —
Applicant entitled to test qualifications by cross-examination
— Application allowed.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Access to Information Act, R.S.C., 1985, c. A-1, ss.
4(1),(2), 20(I)(a),(b), 44(1), 48, 75, 76.
Access to Information Act Extension Order, No. 1, SOR/
89-207, ss. 1, 2.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Maislin Industries Limited v. Minister for Industry,
Trade and Commerce, [1984] 1 F.C. 939; (1984), 10
D.L.R. (4th) 417; 8 Admin. L.R. 305; 27 B.L.R. 84
(T.D.); Canada Packers Inc. v. Canada (Minister of
Agriculture), [1989] 1 F.C. 47; (1988), 53 D.L.R. (4th)
246 (C.A.).
AUTHORS CITED
Driedger, Elmer A. Construction of Statutes, 2nd ed.
Toronto: Butterworths, 1983.
COUNSEL:
J. Martin Peters for applicant.
Barbara A. Mcisaac for respondent.
SOLICITORS:
Shibley, Righton & McCutcheon, Toronto,
for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
MULDOON J.: The applicant, Glaxo, applies to
the Court pursuant to subsection 44(1) of the
Access to Information Act, R.S.C., 1985, c. A-1,
for a review of the determination made on March
10, 1989, by the Access to Information Coordina
tor of the Health Protection Branch (HPB) of the
Department of National Health and Welfare.
According to that determination, a copy of which
is exhibit A to the affidavit of Martin Brian Levy,
filed, "We have decided that attached records for
which access has been requested are not exempt in
their entirety from disclosure under subsection
20(1) of the ... Act. It is our intention to disclose
the requested records as severed to the applicant."
In that context, "the applicant" meant the person
who requested the information. In order to avoid
confusion that person is hereinafter designated the
requester to distinguish that person from the appli
cant herein, Glaxo. The applicant Glaxo lodged its
notice of this present application in Court on
March 29, 1989. Glaxo objected that the informa
tion which the coordinator in the HPB was pre
pared to disclose, is information which the head of
a government institution must refuse to disclose
pursuant to section 20 of the Act. In particular,
objection is asserted pursuant to paragraphs
(1)(a): that which Glaxo asserts are its trade
secrets; and (1)(b): that which Glaxo asserts is at
least scientific or technical information which is
confidential information submitted to the HPB in
order to obtain a Notice of Compliance for the
applicant's prescription product identified in the
material.
The application, resisted by counsel for the
respondent, came on for hearing in Toronto on
January 12, 1990, in a session which, with the
parties' consent, was ordered to be in camera. The
applicant's counsel raised a preliminary objection
in part B, paragraph 4 of his memorandum of fact
and law filed on December 28, 1989; and he raised
the same objection promptly after the commence
ment of the in camera session on January 12,
1990. Based upon subsection 4(1) of the Act, the
preliminary objection can aptly be recited from
part B of the applicant's memorandum:
4. Pursuant to the Access to Information Act, a Canadian
citizen or a permanent resident within the meaning of the
Immigration Act, R.S.C. 1985 [Chap.] 1-2 (the "Immigration
Act") has a right to and shall on request be given access to any
record under the control of a government institution. In the
instant case, there is no evidence before the Court which
indicates that this condition precedent has been met. Accord
ingly, on this basis alone the motion should be allowed.
The provisions of subsection 4(1) are noticeably
"leaky", for, in clearly intending that information
be accorded only to Canadian citizens and perma
nent residents, Parliament did not address the high
probability of such citizens or residents circum
venting the legislators' intent, by passing on such
information to foreigners. However Parliament
made a further provision concerning the right to
access by enacting subsection 4(2), thus:
4....
(2) The Governor in Council may, by order, extend the right
to be given access to records under subsection (1) to include
persons not referred to in that subsection and may set such
conditions as the Governor in Council deems appropriate.
The Governor in Council has, in fact, invoked
the provisions of subsection 4(2) of the Act by
enacting Order in Council P.C. 1989-619 [SOR/
89-207] on April 13, 1989, as follows (in essential
parts):
Short Title
1. This Order may be cited as the Access to Information Act
Extension Order, No. 1.
Extension
2. The right to be given access under subsection 4(1) of the
Access to Information Act to records under the control of a
government institution is hereby extended to include all
individuals who are present in Canada but who are not Canadi-
an citizens or permanent residents within the meaning of the
Immigration Act and all corporations that are present in
Canada.
Here, in expressing an intention to limit access to
only those individuals and corporations "present in
Canada", the Governor in Council has made, in
this era of international telecommunications, as
unenforceable a piece of legislation as Parliament
made in the original subsection 4(1). Moreover,
any discrete access limited by status or by presence
at some time or other still establishes a condition
precedent for the giving of access to any record
under the control of a government institution.
The applicant's challenge to the decision to give
access pre-dates the cited order, which came into
effect upon registration as SOR/89-207 on April
13, 1989. Having been in force now for some nine
months, does the order override the applicant's
preliminary objection which was articulated in
December, 1989, in writing, and orally on January
12, 1990?
The respondent's counsel points to two judg
ments of this Court: Maislin Industries Limited v.
Minister for Industry, Trade and Commerce,
[1984] 1 F.C. 939; (1984), 10 D.L.R. (4th) 417; 8
Admin. L.R. 305; 27 B.L.R. 84 (T.D.); and
Canada Packers Inc. v. Canada (Minister of
Agriculture), [1989] 1 F.C. 47; (1988), 53 D.L.R.
(4th) 246 (C.A.). She asserts that both decisions
hold that in proceedings such as these the burden
of proof lies upon the party who resists revelation
of the information. She notes that the legislation
itself has no specific provision relating to burden of
proof, but, in consonance with the jurisprudence
which she cites, the respondent's counsel asserts
that it was the applicant's obligation to raise this
issue upon receiving the HPB's coordinator's letter
of March 10, 1989, earlier mentioned, if not even
before that letter was received. Counsel points out
that one does not have to be a lawyer, or otherwise
familiar with the Act to ask in effect: "Who is
requesting this access to information?"
Can it be said that the burden of proof described
in the jurisprudence would or does override the
legislation, the logical interpretation of the legisla
tion and the realities of the requesting of informa-
tion pursuant to the Act? That should not be the
rule unless by unavoidable implication.
When the requester makes the request for access
to the information, obviously the requester's iden
tity, status and residence cannot be known to the
applicant or any other applicant. How then in
reason and fairness can the applicant in any other
case, or Glaxo in this case, bear the burden of
demonstrating that the requester is not properly
qualified? First of all rather restrictive qualifica
tions, and subsequently more extended qualifica
tions, were solemnly established by Parliament and
by the Governor in Council, respectively. One
cannot—one must not—denigrate their legislative
actions or the very legislation thereby enacted.
Since the legislator wants qualifications to be met
by requesters, those qualifications, however narrow
or loose, are statutory pre-requisites whereby it is
solemnly enacted that access to this and every
other applicant's information will be denied from
unqualified requesters. The determination of such
qualifications clearly rests upon those who admin
ister the provisions of the legislation, for a person
who is a third-party like the applicant Glaxo, is by
definition excluded from the relationship between
the requester and the government officials who
administer the Act. The applicant third party has
no right, duty or responsibility to maintain or
administer the access-to-information scheme of the
legislation.
In the present case, counsel for the applicant
avers that he did not know the name of the
requester until minutes before the session of this
Court commenced. Counsel says that his adversary
handed him a piece of paper on which there is a
statement to the effect that the requester is a
Canadian citizen. Neither that piece of paper nor
what is written on it is before the Court as evi-
dence upon which the applicant's counsel could
cross-examine a deponent.
It would be manifestly inequitable to lumber
this or any similar applicant with the burden of
verifying the requester's credentials and statutory
qualifications. But those qualifications cannot be
ignored and swept under the rug as being inconse
quential for the legislator has solemnly mandated
them, first in subsection 4(1), and secondly in the
Access to Information Act Extension Order, No. 1
above cited. The responsibility for verification
rests on the respondent here, and not upon the
applicant.
Since the respondent is by statute forbidden
from giving access to the applicant's information
to anyone but a qualified requester, the applicant
has a vested right, accorded by the legislator, to
have the information denied by the government
institution head unless and until that head, the
respondent in the instant case, proves that the
requester is qualified to be given access.
Chapter 10 of the 2nd edition of Driedger on
Construction of Statutes is a veritable lodestone of
jurisprudence on statutory interference with vested
rights. Perusal of that chapter of that authoritative
text yields the conclusion that Glaxo has the vested
right to have its information kept from all persons
except a Canadian citizen or a permanent resident,
because SOR/89-207 came into force on April 13,
1989 and therefore does not override the vested
rights accorded to and asserted by this applicant
by subsection 4(1) of the Act.
The applicant does not have to establish the
requester's pre-requisite qualifications which are
the responsibility of the respondent to establish.
The applicant is however entitled to test such
qualifications by cross-examination, but is frus
trated here in that regard because the respondent
did nothing to establish that condition precedent of
the requester's qualifications. It is unfortunate
that, the legislators having clearly exacted the
establishment of requester's qualifications, they
did not legislate a conventional means whereby the
government institution head is enabled to put for
ward prima facie proof of the qualifications which
the legislators exact in the legislation.
The applicant's preliminary objection to the
respondent's posture in these proceedings is well
founded. The objection is allowed. So, there being
nothing of record to establish that this requester is
qualified to be given access to the HPB's records
of the applicant's information; and there being
nothing of record to show that the respondent is
permitted to, and not forbidden from, acceding to
the requester's request: the applicant's application
for review is allowed here and now, with costs
payable on a party and party basis by the respon
dent to the applicant forthwith after taxation or
agreement. These are matters which might well
engage the attention of the permanent parliamen
tary committee or committees established pursu
ant to section 75 of the Act. Perhaps section 48
could be clarified in the light of these reasons, but
that is a matter entirely for the legislative, not the
judicial, branch of government in the generic
sense.
In the result, the respondent is hereby enjoined
from revealing any of the information or giving
access to it in terms of this present litigation.
Since, by section 76 of the Act, the Crown is
bound by this statute's solemnly enacted provi
sions, so are the Crown's servants bound by these
reasons interpreting the Act's provisions.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.