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Health Canada (Re), 2025 OIC 53

Date: 2025-11-05
OIC file number: 5823-04936
Access request number: A-2023-001450/LS2

Summary

The complainant alleged that Health Canada had improperly withheld information under paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) of the Access to Information Act in response to an access request. The request was for documents related to a series of consultations that Health Canada organized with stakeholders, between November 30 and December 21, 2020. These consultations pertained to the Regulation Amending the Food and Drug Regulations, in particular to the Interim Order Respecting the Importation, Sale and Advertising of Drugs for Use in Relation to COVID-19: SOR/2021-45. This allegation falls under paragraph 30(1)(a) of the Act.

The complainant also alleged that Health Canada had not conducted a reasonable search for records in response to the same access request. This allegation falls under paragraph 30(1)(a) of the Act.

Neither Health Canada nor any of the third parties established that the requirements of paragraph 20(1)(b) were met. Health Canada also failed to establish that it had carried out a reasonable search when it responded to the request.

The Information Commissioner ordered that Health Canada disclose the names of the third parties in full and carry out a new search for records. Health Canada gave notice to the Commissioner that it would comply with the order. The complaint is well founded.

Complaint

[1] The complainant alleged that Health Canada had improperly withheld information under subsection 19(1) (personal information) and paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) of the Access to Information Act in response to an access request. The request was for documents related to a series of consultations that Health Canada organized with stakeholders, between November 30 and December 21, 2020. These consultations pertained to the Regulation Amending the Food and Drug Regulations, in particular to the Interim Order Respecting the Importation, Sale and Advertising of Drugs for Use in Relation to COVID-19: SOR/2021-45. This allegation falls under paragraph 30(1)(a) of the Act.

[2] The complainant also alleged that Health Canada had not conducted a reasonable search for records in response to the same access request. This allegation falls under paragraph 30(1)(a) of the Act.

[3] During the investigation, the complainant decided it was no longer necessary for the Office of the Information Commissioner (OIC) to investigate the application of subsection 19(1). Consequently, only a column containing the names of third parties remained within the scope of the complaint.

Investigation

[4] When an institution withholds information related to a third parties, the third parties and/or the institution bear the burden of showing that refusing to grant access is justified.

Paragraph 20(1)(b): confidential third-party financial, commercial, scientific or technical information

[5] Paragraph 20(1)(b) requires institutions to refuse to disclose confidential financial, commercial, scientific or technical information provided to a government institution by a third party (that is, a private company or individual, but not the person who made the access request).

[6] To claim this exemption, institutions must show the following:

  • The information is financial, commercial, scientific or technical.
  • The information is confidential.
  • The third party supplied the information to a government institution.
  • The third party has consistently treated the information as confidential.

[7] When these requirements are met, and the third party to whom the information relates consents to its disclosure, subsection 20(5) requires institutions to reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[8] Health Canada applied paragraph 20(1)(b) to withhold the names of all third parties in the internal email between Health Canada employees, related to the preparation of a webinar organized by Health Canada.

[9] Pursuant to paragraph 35(2)(c), the OIC sought representations from the third parties whose names were withheld under paragraph 20(1)(b). Notice was also sent to the third parties pursuant to section 36.3, informing them of my intention to order disclosure of their names and inviting further representations. The third parties who responded either did not object to disclosure or made no new representations.

[10] Twelve third parties did not provide representations in response to the OIC’s request or notice, three third parties responded that they have no representations to make and twelve of the third parties responded that they do not oppose disclosure of their company names in this context.

[11] Three of the third parties opposed disclosure and provided representations as to why they assert the information should not be disclosed.

[12] Regarding the first requirement of the exemption, according to the decision Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, the Supreme Court of Canada, the terms “financial, commercial, scientific or technical” should be given their ordinary dictionary meanings. The Supreme Court of Canada found that administrative details similar to the ones at issue here did not constitute financial, commercial, scientific or technical information.

[13] I am not convinced that the names of the third parties, in the context to the responsive record, constitute financial, commercial, scientific or technical information. Neither Health Canada nor the third parties established how the attendance of the third parties at the webinar served any direct commercial purpose.

[14] As it was raised by the parties, I accept that disclosure could reveal the third parties’ intention to develop products or services related to COVID-19, which would constitute commercial information. Consequently, the third parties’ intention to develop products or services related to COVID-19 meets the first requirement of the exemption. I note, however, that such an interpretation of the information at issue would only apply to the third parties who are in the business of providing such products and services. No evidence was presented as to how provincial health departments and associations could have attended the webinar to further a commercial venture.

[15] Regarding the confidentiality of the information and according to the Federal Court (Air Atonabee Ltd. V. Canada (Minister of Transport) (1989), 27 C.P.R (3d) 180 (Fed T.D) at 197)), exemption from disclosure pursuant to paragraph 20(1)(b) requires that the information in question meet the following conditions for objective confidentiality:

  • the information contained in the record is not available from other sources in the public domain or obtainable by observation or independent study by a member of the public acting on his or her own;
  • the circumstances in which the information originates and is communicated give rise to a reasonable expectation that it will not be disclosed;
  • the information, whether provided by law or supplied voluntarily, is communicated to the government within a relationship that is either fiduciary or not contrary to the public interest and that will be fostered for the public benefit by confidential communication. (see: Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, para. 133).

[16] Although I accept that the identities of the webinar participants are not publicly available, the records suggest that the identities of some of the participants may have been made known during the presentation. Any participants who asked questions or made comments would have risked revealing their identity to other participants. Where this is the case, the first requirement of objective confidentiality may not be met (see: Cistel Technology Inc. v. Canada (Correctional Service), 2002 FCT 253 at para. 11).

[17] With respect to whether the third parties’ intention to develop COVID-19 related products or services was publicly available, the OIC found evidence that such information was already public at the time the request was made in February 2024. Neither Health Canada nor any of the third parties established how releasing the names of these companies would reveal more detail about the third parties’ commercial intentions than what was already publicly available.

[18] It has also not been established that the third parties had a reasonable expectation that Health Canada would not disclose their names in the context of having participated in the webinar that took place on December 11, 2020. Health Canada conceded that third parties may have been aware of the other third parties in attendance, and in Cistel Technology Inc. v. Canada (Correctional Service), 2002 FCT 253 the court found that “information that is readily available to companies in the same business cannot objectively be confidential, nor is information that can be obtained by observation, even where some degree of effort is required”.

[19] I conclude that none of the third parties’ names meet the requirement of being objectively confidential.

[20] Turning to the third requirement of paragraph 20(1)(b), I am satisfied that disclosure of the list amounts to disclosure of the following information supplied by the third parties:

  • the third parties interest in attending the webinar; and/or
  • the third parties’ commercial interest in the subject matter.

[21] Finally, I am not convinced that some of the third parties have consistently treated the information as confidential. When considering the third parties’ intention to develop products or services related to COVID-19, such information had been made public by all of the commercial third parties at the time of the request.

[22] I conclude that the names of the third parties do not meet the requirements of paragraph 20(1)(b), as none of the names or information that could be derived from those names meets all four requirements of the exemption.

Reasonable search

[23] Health Canada was required to conduct a reasonable search for records that fall within the scope of the access request—that is, one or more experienced employees, knowledgeable in the subject matter of the request, must have made reasonable efforts to identify and locate all records reasonably related to the request.

[24] A reasonable search involves a level of effort that would be expected of any fair, sensible person tasked with searching for responsive records where they are likely to be stored.

[25] This search does not have to be perfect. An institution is therefore not required to prove with absolute certainty that further records do not exist. Institutions must however be able to show that they took reasonable steps to identify and locate responsive records.

Did the institution conduct a reasonable search for records?

[26] Health Canada provided detailed representations as to how it carried out its search for records responsive to the request. I acknowledge that Health Canada pointed to significant employee turnover as an impediment to providing a fulsome explanation as to how the search for records was carried out. This does not excuse Health Canada, however, from having to demonstrate that the search it carried out was reasonable, or that it has now carried out a reasonable search as a result of this investigation.

[27] I accept that the Health Products and Food Branch is the Office of Primary Interest (OPI) most likely to hold relevant records.

[28] Based on the representations received from Health Canada, however, I am not convinced that the search done by the OPI was reasonable.

[29] Health Canada indicated that it had located some additional records during the investigation and provided a 10-page supplementary release to the complainant on July 22, 2025. These additional records are correspondence with two external stakeholders dating up to December 21, 2020.

[30] The representations received from Health Canada did not provide specifics as to the date range covered by the search, beyond indicating that the OPI searched beyond the November 30 and December 21, 2020 timeframe mentioned in the request text. Some of Health Canada’s representations suggest the search only extended to records created in early January 2021. Such search parameters would not seem to be adequate for capturing all records requested.

[31] The last part of the request reads as follows: “I would like to receive a copy of all observations, exchanges, requests and other discussions arising from these exchanges [Our translation]”. It seems clear the complainant was interested in all records related to the consultation with stakeholders carried out from November 20 to December 21, 2020, not only records created during that period. Health Canada provided no indication that this is not how it interpreted the request or why a more restrictive interpretation would have been reasonable.

[32] It seems likely that some internal discussions and informal discussions would have continued beyond the December 21, 2020 end date for external consultations with stakeholders. The changes to the regulations were made public in the Canada Gazette on March 31, 2021. Health Canada provided no cogent explanation for the absence of any records dated between December 21, 2020 and March 31, 2021 in its response.

[33] Additionally, Health Canada’s summary of “What was heard” (publicly available at https://www.canada.ca/en/health-canada/services/drugs-health-products/covid19-industry/drugs-vaccines-treatments/authorization/…), indicates that written submissions were received from ten stakeholders. This same summary indicates these submissions were relied on by Health Canada in creating a related guidance document. As such, I would expect all ten written submissions to have been saved in the appropriate corporate repositories and included in Health Canada’s response to the access request, which is not the case.

[34] Due to employee turnover, Health Canada indicated that it could not confirm the search terms used in the records search. Health Canada’s failure to document such details when it processed the request prevent it from establishing that the original search was reasonable.

[35] I conclude that Health Canada did not conduct a reasonable search for records in response to the access request.

Outcome

[36] The complaint is well founded.

Orders and recommendations

I order the Minister of Health to do the following:

  1. Disclose the names of all of the third parties that appear in the list of webinar participants;
  2. Carry out a new search for all records related to the consultation with stakeholders carried out from November 20 to December 21, 2020, including relevant records created after that period;
  3. Give access to any additional responsive records, unless access to them, or to part of them, may be refused under a specific provision(s) of Part 1 of the Act. When this is the case, name the provision(s); and
  4. If no additional responsive records are identified or located during the search, indicate in the response how and where the search was conducted and why no such records were identified or located.

Initial report and notice from institution

On September 2, 2025, I issued my initial report to the Minister of Health setting out my orders.

On October 3, 2025, Health Canada’s Executive Director, Access to Information and Privacy gave me notice that Health Canada would be implementing the orders.

Review by Federal Court

When an allegation in a complaint falls under paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant has the right to apply to the Federal Court for a review. When the Information Commissioner makes an order(s), the institution also has the right to apply for a review. The complainant and/or institution must apply for a review within 35 business days after the date of this report. When they do not, third parties may apply for a review within the next 10 business days. Whoever applies for a review must serve a copy of the application for review to the relevant parties, as per section 43. If no one applies for a review by these deadlines, the order(s) takes effect on the 46th business day after the date of this report.

Other recipients of final report

As required by subsection 37(2), this report was provided to the 18 third parties who made representations during the investigation.

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