Date: 20031205
Docket: T-36-02
Citation: 2003 FC 1422
Between:
MERCK FROSST CANADA & CO.
Applicant
- and -
THE MINISTER OF HEALTH CANADA
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an appeal from the decision of Prothonotary Tabib sustaining the respondent's objections to the applicant's questions during the cross-examination on affidavit of the respondent's witnesses Margery Carole Snider and Serge Durand. The questions at issue concern the process followed by the respondent in reaching his decision dated December 19, 2001, to partially disclose certain records under section 28 of the Access to Information Act (the "ATIA"). The respondent's decision is the subject-matter of the within application for review pursuant to section 44 of the ATIA.
[2] The respondent objected to the questions on the ground that they are irrelevant. Prothonotary Tabib agreed with the respondent's position and stated the following in her decision:
All the other objections relate to the decisional process followed by the respondent and the material considered by the affiants in arriving at their decisions or recommendations. Whether the principles to be applied by this Court on an application pursuant to section 44 of the Access to Information Act is a determination de novo, as propounded by the respondent or a review based on the standard of correctness as suggested by the applicant, the issue of how and on the basis of what information the respondent arrived at its decision is not relevant to the determination of this application. As to the validity of the questions as a means of testing the witnesses' credibility, I find that the credibility of the affiants is not put in issue in these proceedings in such a way as to render relevant the questions objected to.
[3] Upon hearing counsel for the parties and upon reading the material filed, I am not prepared to conduct a de novo review of the merits of the impugned decision and to exercise my own discretion differently because the applicant has failed to demonstrate that the Prothonotary's decision is "clearly wrong", in that it was based upon an incorrect principle of law or a misapprehension of the facts, or that the question raised is vital to the "final issue" in the case (see Z.I. Pompey Industrie v. ECU-Line N.V., 2003 SCC 27, [2003] S.C.J. No. 23 (S.C.C.) (QL)). Indeed, I am of the opinion that the Prothonotary applied the correct legal principle of relevance in deciding that the respondent's objections should be sustained. In the underlying application for review pursuant to section 44 of the ATIA, the Court is not reviewing the legality of the respondent's decision, but will decide de novo, based in part on new evidence that was not before the respondent, whether the information contained in the records is of such a confidential or prejudicial nature that it should be exempt from disclosure under section 20 of the ATIA. Considering that the credibility of the affiants is not at issue, the questions related to the respondent's decision-making process are wholly irrelevant to the issues to be determined by the Court.
[4] Consequently, the motion is dismissed, with costs.
JUDGE
OTTAWA, ONTARIO
December 5, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-36-02
STYLE OF CAUSE: MERCK FROSST CANADA & CO. v. THE MINISTER OF HEALTH CANADA
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: December 4, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: December 5, 2003
APPEARANCES:
Ms. Karine Joizil FOR THE APPLICANT
Ms. Marie Crowley FOR THE RESPONDENT
SOLICITORS OF RECORD:
Fasken, Martineau, DuMoulin LLP FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario