Canada: Pharma In Brief - Canada: Confidentiality Of Information Held By Government

There have been a number of decisions dealing with access to commercial information held by the Ministry of Health and Long-term Care in Ontario ("Ministry") under the Freedom of Information and Protection of Privacy Act (FIPPA). This update provides an overview of decisions rendered by the Information and Privacy Commissioner of Ontario (IPC) that have issued over the past several months. Given that pan-Canadian price negotiations between pharmaceutical manufacturers and the provinces are becoming commonplace, how company information is treated by governments is a relevant issue for companies to consider. The focus of this update is on Ontario. However, access to information laws differ in each province and their application should be considered in light of provincial legislation and case law.

Release of information relating to payments made by companies to governments

Records relating to pricing under the Ontario Drug Benefit Program - the government drug coverage plan for certain citizens - have been the subject of a number of requests for information under FIPPA in the past few years. In January 2010, the IPC adjudicated three matters relating to the Transparent Drug System for Patients Act, 2006 and allowed the release of various types of information relating to product listing agreements reached between pharmaceutical manufacturers and the Ministry. The information released included amounts paid per manufacturer to the government as volume discounts and other forms of payment. The Ministry had argued against release, and manufacturers, who were not given prior notice, only learned of the release after it had occurred.

In June 2010, in respect of a request seeking information relating to a sample of a final listing agreement with a named drug company, the IPC upheld the Ministry's decision to partially disclose certain information. However, in that case, the IPC withheld from disclosure the volume discount paid by the drug manufacturer to the Ministry. The IPC agreed with the Ministry's position not to disclose on the basis that the information fell within the governmental exemption aimed at protecting the economic and financial interests of the Ministry. The IPC found "that disclosure of the information at issue could reasonably be expected to discourage drug manufacturers in the future from negotiating large volume discounts and other favorable financial terms with Ontario, out of concern that this information could be used by their other public and private sector customers seeking to negotiate similar discounts with the drug manufacturers". In addition, the IPC did not find a compelling public interest to disclose the payment information, as was argued by the requester.

Earlier this year, the IPC released two decisions dealing with requests for access to similar information as that in the prior cases, including records relating to pricing and listing agreements between the Ministry and named drug manufacturers for drug products listed on Ontario's formulary. One request was for a re-release of the same information ordered to be disclosed in the three prior orders from January 2010; the other involved information contained in two agreements between a named drug manufacturer and the Ministry. In the result, the IPC upheld the Ministry's decision to disclose some of the requested information; however, consistent with the June 2010 decision, the information on specific payments and the formulas for calculating payment arrangements were withheld from disclosure.

Links to Decisions:

PO-2898 (June 28, 2010)

PO-3174 (February 28, 2013)

PO-3176 (March 8, 2013)

Release of information on payments to pharmacies

On May 31, 2013, the IPC released two orders relating to a request for information for access to the amount of "professional allowances" received by and/or paid to certain named pharmacies. The Ministry had identified 27 records as responsive to the request and claimed that payment information was exempt as it constituted third-party commercial information. The requester appealed the decision of the Ministry, arguing that there is a compelling "public interest" to disclose the information, as permitted under FIPPA. Six drug manufacturers, who were notified as affected parties relating to their payment information, objected to the proposed disclosure of information (other than payments, which the Ministry was not going to release) as contained in the professional allowance reporting forms and appealed the Ministry's decision in that respect.

In Order PO-3209, the requester's appeal, the IPC upheld the decision not to disclose the quantum of professional allowances paid by the drug manufacturer. Since the amount paid as professional allowances arises in the private commercial context between a drug manufacturer and pharmacy, and the reports of professional allowances paid, being a statutory requirement, were supplied to the Ministry in confidence, this information was exempt from disclosure.

The IPC accepted the drug manufacturers' position that the harm that would result from the disclosure of this information would include economic loss, interference with contractual relationships between the manufacturer and the pharmacy, and prejudice to its competitive position in the market amongst drug manufacturers. The IPC also found that the requester's argument for public interest disclosure of this information did not apply. The information sought did not meet the threshold of being a "compelling public interest" rather, the payment information of professional allowances was private in nature.

The second order, Order PO-3210, relates to the drug manufacturers' appeal and the information that the Ministry proposed to disclose on the basis that it did not fall within one of the exemptions under FIPPA. The IPC found that the third-party commercial information exemption did not apply to any information other than the quantum of professional allowances.

Link to decisions:

PO-3209 (May 31, 2013)

PO-3210 (May 31, 2013)

Release of information on contracts with hospitals

Earlier this year, the IPC adjudicated three appeals involving requests made to hospitals for access to vendor contracts for infant formula, including records describing any benefits, gifts or non-monetary compensation received by the hospital. The vendor objected to the disclosure of the requested information, claiming that the mandatory exemptions for third-party commercial information and personal information applied to the agreements. In spite of this objection, the hospitals were prepared to disclose the agreement, which the third party appealed to the IPC. The IPC agreed with the hospitals' position to allow full access to the agreements, finding that,

"[t]he contents of a contract involving an institution will not normally qualify as having been supplied for the purpose of section 17(1). The provisions of a contract, in general, have been treated as mutually generated, rather than "supplied" by the third party, even where the contract is preceded by little or no negotiation or where the final agreement reflects information that originated from a single party."1

The decision upholds the principle that contracts containing mutually agreed upon terms that result from negotiation between the parties do not necessarily fall under the third-party commercial information exemption under FIPPA. The IPC agreed with the hospital's position that standard contract templates did not prejudice the competitive position of the affected third party in respect of future negotiations. Further, the IPC stated that the vendors were sophisticated parties that would not be in a position of weakness from the disclosure of the contracts. These decisions illustrate that contracts negotiated between hospitals and vendors may be subject to disclosure, although it should be recognized that other exemptions (including those that a government is entitled to claim, as in the case of the product listing agreement payments) may be held to apply in a given circumstance.

Link to decisions:

PO-3185 (April 5, 2013)

PO-3192 (April 25, 2013)

PO-3230 (July 11, 2013)


The above-mentioned decisions in Ontario provide examples of some circumstances where the release of information has been allowed or where statutory exemptions preventing disclosure have applied. While these decisions provide some guidance on the potential release of confidential information provided to government institutions, each case must be determined on its own facts.


1 IPC Provincial Orders PO-3185 at para 32, PO-3230 at para 25.

Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global legal practice. We provide the world's pre-eminent corporations and financial institutions with a full business law service. We have more than 3800 lawyers based in over 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski LLP, each of which is a separate legal entity, are members ('the Norton Rose Fulbright members') of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.