Federal Court Decisions

Date: 19971127

Docket: T-1551-97

BETWEEN:

     GLAXO WELLCOME PLC

     Applicant

     - AND -

     MINISTER OF NATIONAL REVENUE

     Respondent

     REASONS FOR ORDER

McKEOWN, J.

[1]      The applicant seeks judicial review to set aside the July 11, 1997 decision of the respondent rendered pursuant to subsection 108(1) of the Customs Act not to disclose the identity of importers of certain shipments of the drug ranitidine hydrochloride into Canada in 1995 and 1996. The applicant also seeks an Order directing the respondent to disclose the identity of importers of the drug into Canada in 1995, 1996 and 1997.

[2]      The issues are whether the Minister fettered his discretion, relied on irrelevant considerations and erroneous findings of fact and ignored relevant evidence.

[3]      The applicant submits that the Minister relied on his guidelines and did not review the individual case before him. Furthermore, the applicant submits that the Minister misinterpreted section 108 and was unable to exercise any discretion as a result thereof.

[4]      In my view, the Minister did not fetter his discretion. The Minister followed the guidelines and gave them as a primary reason for disallowing the request for the names. As stated in Sebastian v. Saskatchewan (Workers' Compensation Board) (1994), 119 D.L.R. (4th) 528 at 548 (Sask. C.A.) by Tallis, J.A.:

The role of policy in administrative decisions is generally recognized. A board or tribunal is entitled to develop guidelines for application of statutory provisions which facilitate consistency and enable those governed by the legislation to know what factors may affect a claim. A policy may not remove the decision from the Board; if it predetermines a matter without an opportunity to address the merits, the Board disables itself from exercising the power to decide entrusted to it by statute ...

Leave to appeal Sebastian was denied by the Supreme Court of Canada in 1995.

[5]      In the present case, the Minister's officials followed up on the issues raised by the applicant in its request and accompanying submissions from its lawyers. The applicant was provided with a full opportunity to present its case for release of the information. Representatives of the applicant and respondent met to discuss the request. Following the meeting, action was taken to determine the accuracy of the Statistics Canada information obtained by the applicant. The applicant had mentioned that the unaccounted for importations of RHCL may affect the health of Canadians and the respondent immediately turned those concerns over to Health Canada. The respondent asked for further assistance in reviewing the applicant's request in the form of an independent audit of the licensees of the applicant but the applicant did not assist in this manner. The respondent contacted the applicant to seek additional information with respect to "new information" alleged by the applicant. The respondent also sought opinions of legal issues brought forward by the applicant's request. It is evident that the respondent did not blindly follow a policy, but put much time and effort into reviewing the individual merits of the request.

[6]      It is true that Mr. J. Shearer, in his letter dated March 25, 1997, and Mr. G. Calow, in his letter dated March 24, 1997, both misinterpreted the effect of section 108. However, the recipient of the memoranda, Mr. Allan J. Cocksedge, Assistant Deputy Minister, refused to forward the letter suggested by Mr. Shearer and instead arranged to have the concerns of the applicant followed up. Accordingly, the interpretation of section 108 was not accepted by the Assistant Deputy Minister.

[7]      As stated in Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12 and Maple Lodge Farms Limited v. Government of Canada and the Minister of Economic Development, [1982] 2 S.C.R. 2, the Minister's discretion is subject to bad faith and natural justice, neither of which exists here.

[8]      I do not agree that the July 11, 1997 letter relies strictly on the guidelines. The letter makes reference to Glaxo Wellcome's interests in pursuing a private remedy. As stated earlier, the Minister clearly pursued the points raised by the applicant. The Minister is not required to list every reason for exercising his discretion as long as all of the submissions of the applicant are considered.

[9]      The Minister suggested various recourses to the applicant. One suggestion, as mentioned above, was the independent audit of the books of licensees to turn up any under-reporting. The applicant was informed of its right to complain pursuant to the Access to Information Act. It was also suggested that the applicant hire a private investigator. The applicant responded that none of these alternatives would be feasible or effective. I do agree with the applicant that the respondent's suggestion that the applicant could get information through the Food and Drug Regulations and the Patented Medicines (Notice of Compliance) Regulations is not a viable option.

[10]      In my view, the misinterpretation of section 108 by two non-decision making persons in the Minister's department is not an error which calls for the reversal of the Minister's decision. It is clear that the Minister did not restrict himself to the guidelines. If the guidelines were inflexible, why should the Minister have spent three and one half months investigating the concerns of the applicant. This is not a case where the Minister made up his mind in advance, as submitted by the applicant. A summary memorandum by Mr. Calow compiled on June 30, 1997, clearly indicates that the position of the applicant was reviewed and taken into consideration. At page 4 of the memorandum the actions requested by Mr. Cocksedge are outlined. Further, rather than adopting a blanket policy of non-disclosure, the memorandum concludes that "... the right of private companies to have Revenue Canada maintain the confidentiality of their corporate information outweighs the right of Glaxo to forego efforts in the private sector to obtain the available information through its own devices."

[11]      The applicant is, not surprisingly, unhappy that the Minister did not prefer its arguments. However, it is the Minister's discretion that Parliament legislated. It is not for the Court to prefer its own view of how the discretion should be exercised when the Minister has not made capricious or perverse findings of fact or reversible errors in law and has not failed to consider relevant evidence. The applicant and the respondent take different views on whether the applicant had available other recourses to obtain the names. In my view, the Minister did not act unreasonably in suggesting some of the recourses, which I outlined in my reasons, for refusing the bill of discovery. In my view, the Minister did not ignore the public interest in having justice done. The third paragraph of the respondent's July 11, 1997 decision letter sets out the Minister's opinion with the respondent's rights when he states:

Information given to Revenue Canada for the purposes of Customs legislation is by statute to be held in confidence by the Department. Revenue Canada cannot cede its responsibility to guarantee confidentiality of importers' information. The Department cannot jeopardize its confidential relationship with the importing community in order to assist a private company in its pursuit of a civil action. Intellectual property right is a private right and the responsibility of protecting that right remains squarely on the shoulders of the right holder. Glaxo has the means and the statutory provisions at its disposal to take action against licensees, or anyone else, who is infringing its patent rights without the necessity of compromising confidentiality provisions of the Customs Act.

[12]      The Minister is looking at both the Department's concerns and the concerns of the respondent. While the second sentence is more absolute than the law requires, it must be read in the context of the whole paragraph. The application is dismissed.

                             ___________________________________

                             JUDGE

OTTAWA, ONTARIO

November 27, 1997