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Health Canada (Re), 2026 OIC 15

Date: 2026-02-13
OIC file number: 5823-00080
Access request number: A-2017-000107

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) and paragraph 20(1)(c) (financial impact on a third party) of the Access to Information Act in response to an access request for information related to submissions for using Anafranil / Altius Clomipramine in the treatment of obsessive-compulsive disorder. The allegation falls under paragraph 30(1)(a) of the Act.

Both Health Canada and the third party declined to make detailed representations in support of the third-party exemptions. Both indicated that due to the passage of time, those exemptions no longer apply. The Information Commissioner ordered that Health Canada disclose the information at issue. 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 paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) and paragraph 20(1)(c) (financial impact on a third party) of the Access to Information Act in response to an access request for information related to submissions for using Anafranil / Altius Clomipramine in the treatment of obsessive-compulsive disorder. The allegation falls under paragraph 30(1)(a) of the Act.

[2]During the investigation, the complainant decided it was no longer necessary for the Office of the Information Commissioner (OIC) to investigate Health Canada’s withholding of personal information under subsection 19(1), which includes the withholding of information related to the investigators’ names and cities. The complainant also decided it was no longer necessary for the OIC to investigate Health Canada’s withholding of information on pages other than pages 13-26.

Investigation

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

[4]The OIC sought representations from AA Pharma Inc. (AA Pharma) pursuant to paragraph 35(2)(c). Apotex Inc. responded on AA Pharma’s behalf, indicating that in light of the personal information not being at issue and due to the passage of time it would make no submissions as to how the information qualifies for exemption.

[5]I considered the representations received from the third party, Health Canada and the complainant in coming to my conclusions.

Paragraph 20(1)(a): third-party trade secrets

[6]Paragraph 20(1)(a) requires institutions to refuse to disclose trade secrets that belong to a third party (that is, a private company or individual, but not the person who made the access request).

[7]To claim this exemption, institutions must show that the information is a trade secret—that is, a plan or process, tool, mechanism or compound that possesses all four of the following characteristics:

  • The information is secret—that is, only one or a relatively small number of people know it.
  • The third party intended to treat the information as secret.
  • The information has industrial or commercial application.
  • The third party has an interest worthy of legal protection (that is, an economic interest).

Does the information meet the requirements of the exemption?

[8]Health Canada did not apply paragraph 20(1)(a) to the records; however, AA Pharma indicated during the processing of the request that it feels this exemption applies to the withheld information.

[9]During the investigation, Health Canada made representations indicating that some of the information on pages 13-26 meets the requirements paragraph 20(1)(a), but that due to the passage of time, the exemption no longer applies to any of the withheld information.

[10]Since AA Pharma and Health Canada no longer maintain the exemption applies and provided no representations in support of it, I conclude that the information does not meet the requirements of paragraph 20(1)(a).

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

[11]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).

[12]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.

Does the information meet the requirements of the exemption?

[13]Health Canada applied paragraph 20(1)(b) to withhold the last two pages of Health Canada’s overall recommendations (pages 25-26).

[14]Health Canada maintained that the exemption was well applied at the time it responded to the request and provided brief representations as to how the requirements of paragraph 20(1)(b) are met.

[15]I find that AA Pharma and Health Canada’s representations fall short of establishing that the requirements of paragraph 20(1)(b) are met for certain information. Health Canada conceded that the information no longer warrants exemption due to the passage of time.

[16]I conclude that the information does not meet the requirements of paragraph 20(1)(b).

Paragraph 20(1)(c): financial impact on a third party

[17]Paragraph 20(1)(c) requires institutions to refuse to disclose information that, if disclosed, could reasonably be expected to have a material financial impact on a third party (that is, a private company or individual, but not the person who made the access request) or harm its competitive position.

[18]To claim this exemption with regard to financial impact on a third party, institutions must show the following:

  • Disclosing the information could result in material financial loss or gain to the third party.
  • There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[19]To claim this exemption with regard to competitive position, institutions must show the following:

  • Disclosing the information could injure the competitive position of the third party.
  • There is a reasonable expectation that this prejudice could occur—that is, the expectation is well beyond a mere possibility.

Does the information meet the requirements of the exemption?

[20]Health Canada applied paragraph 20(1)(c) to withhold information on pages 13-24 of its response to the request.

[21]Health Canada maintained that the exemption was well applied at the time it responded to the request and provided brief representations as to how the requirements of paragraph 20(1)(c) are met.

[22]For paragraph 20(1)(c) to apply, there must be a clear and direct connection between the disclosure of specific information and a risk of harm well beyond the merely possible or speculative (see Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3 (Merck), paras. 197, 206).

[23]I find that the representations made regarding the possible harm in disclosure are too speculative in nature and are insufficient to establish a clear link between disclosure and a reasonable expectation of probable harm to AA Pharma. Health Canada conceded that the information no longer warrants exemption due to the passage of time.

[24]I conclude that the information does not meet the requirements of paragraph 20(1)(c).

Outcome

[25]The complaint is well founded.

Order

I order the Minister of Health to fully disclose pages 13-26, apart from the personal information contained therein.

Initial report and notice from institution

On January 9, 2026, I issued my initial report to the Minister of Health setting out my order.

On February 11, 2026, Health Canada’s Executive Director, Access to Information and Privacy gave me notice that Health Canada would be implementing the order.

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, 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 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 AA Pharma.

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