Alex Cameron and Pavel Sergeyev successfully represented Elanco Canada Limited (“Elanco”) before the Federal Court of Canada in invalidating a decision by Health Canada to disclose certain records (the “Records”) pertaining to a veterinary drug product, Fortekor Flavour Tabs, pursuant to a request made under the Access to Information Act (the “Act”). Health Canada had taken the position that the Records were “part of the public domain” and therefore could not be exempt from disclosure pursuant to section 20(1) of the Act.
On judicial review, the Court agreed with Elanco’s submission that Health Canada’s position was based upon unsubstantiated information, relating to different medications, with different compounds, in different jurisdictions. In invalidating Health Canada’s decision to disclose the Records, the Court held that “the fact that a word or a phrase can be located in public domain information does not necessarily equate to Elanco's information being in the public domain.”
The Court also found that Elanco had established a reasonable expectation of harm if the Records were disclosed and rejected Health Canada’s argument that expert evidence was required in order to establish a reasonable expectation of harm under section 20(1) of the Act.
