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Supreme Court of Canada Clarifies Disclosure Principles

Supreme Court of Canada Clarifies Disclosure Principles

Although it does not spring from family law directly, the Supreme Court of Canada has recently clarified the important governing principles relating to the disclosure of third-party information, and these may have repercussions in terms of government-disclosure and privacy principles in general.

In Merck Frosst Canada Ltd v Minister of Health, the backdrop was simple: the drug company Merck had duly tendered a new drug submission to Health Canada, in keeping with regulatory requirements.   Certain other parties had formally applied for Access-to-Information requests in connection with those drug submissions, under the provisions of the federal Access to Information Act.    Without notifying Merck, Health Canada disclosed the records it held on Merck’s new drug submission to the other parties; needless to say, when it learned of the disclosure Merck objected, claiming that the documents should not have been disclosed at all under certain exemption provisions in the Act, or that at the very least it should have received notice in advance.

In defence of its decision to disclose without notice, Health Canada conceded that the Act incorporated certain third-party exemptions (allowing a government institution such as Health Canada to refuse to disclose a third party’s trade secrets, its confidential financial, commercial, scientific or technical information, or any competitive information that would result in financial prejudice to the third party if it were to be disclosed).  However it claimed – among other things – that it was unable to determine whether non-disclosure was justified in this case.

In assessing each party’s position, the Supreme Court of Canada set out important disclosure and privacy principles that are to govern in such cases.   They are:

• There must be a balance between the duty to protect third-party information on the one hand, and the general principle there should be access to government records, on the other.

• There is no automatic right to notice of disclosure; however, there is a fairly low threshold for the requirement to give such notice.

• Disclosure without notice will be justified only in the clearest of cases.

• A government institution (such as Health Canada) should give notice even where is doubt as to whether the third-party exemption applies.

• The government institution must make a serious attempt to apply the exemption, by reviewing each individual record to determine which portion, if any, may be exempted.

• In keeping with common sense, the third party who requests access to the documents should be as helpful as possible in identifying precisely what information might fall within the exemption, and to identify why disclosure is not permitted.  (Such parties will often be in a better position than the government institution to make these identifications).

• The decision of whether or not to apply an exemption to disclosure under the Act will also be governed by the question of whether disclosure could reasonably expected to cause “probable harm” to a party like Merck.

The Supreme Court of Canada then went on to clarify certain specific aspects of the Act’s exemptions, (such as the meaning to be given to terms such as “trade secrets” and “confidential information”) and provided further insight on the burden of proof on a judicial review of a decision by a government institution such as Health Canada not to acquiesce to the Access-to-Information request.  Ultimately, it held that in this particular case, Merck did not establish that it fell within the third-party extension.

This decision provides important guidelines on the Court’s view the disclosure of confidential information; as it potentially relates to family law litigation, it may have tangential impact on disclosure obligations between parties (particularly where there is a corporate asset), or in connection with the disclosure of health records by medical facilities.

For the full text of the decision, see:

Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3 (CanLII)  http://canlii.ca/t/fpvd1

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