• Decision to Add Information Commissioner as Party to Judicial Review of ATI Decision Upheld
  • August 3, 2016 | Authors: Adrian J. Howard; Beverley Moore; Chantal Saunders
  • Law Firm: Borden Ladner Gervais LLP - Ottawa Office
  • Apotex v. Canada (Health), 2016 FC 776

    Apotex brought an application for judicial review in relation to three separate but identical decisions of the Minister of Health to disclose information in response to an access to information request. The Information Commissioner of Canada brought a motion to be added as a respondent to the proceedings, and that motion was granted. Apotex appealed that decision, however the decision was upheld.

    The Court held that the Prothonotary's decision was discretionary, and not vital to the final outcome of the case. Thus, in order to be overturned, it must have been clearly wrong, based upon a wrong principle or based upon a misapprehension of the facts. Apotex argued that the Prothonotary did not consider its submissions in response to the Commissioner's motion, but the Court did not agree. Further, the Court held that the Prothonotary was not obliged to hold an oral hearing, or to provide reasons for not doing so.

    The Court held that a strict interpretation of Rule 104 of the Federal Courts Rules regarding parties would undermine Parliamentary intention that the Commissioner be granted leave to be added as a party. Whether the commissioner should be added as a party is a case-by-case determination that cannot be based on the stringent criteria of Rule 104 alone. In other cases, the Court had asked whether the participation of the Commissioner would assist the Court to determine a factual or legal issue in the proceedings, similar to the test for intervention. This test was adopted as a way to reconcile Rule 104 with the Act.