• Decision to Add Information Commissioner as a Party to an ATI Decision Judicial Review Upheld by Court of Appeal
  • August 2, 2017 | Authors: Beverley Moore; Adrian J. Howard
  • Law Firm: Borden Ladner Gervais LLP - Ottawa Office
  • Apotex Inc. v. Canada (Health), 2017 FCA 160

    The Federal Court of Appeal dismissed Apotex's consolidated appeals of the Federal Court's decision in 2016 FC 776 (our summary here). The Judge had dismissed Apotex's appeal of the Prothonotary's Order, which granted the Information Commissioner leave to be added as a party to Apotex's application for judicial review. In the underlying application, Apotex applied 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 Court of Appeal found that the Judge had not erred in refusing to interfere with the Prothonotary's order even though the Commissioner had not demonstrated it was a necessary party pursuant to Rule 104 of the Federal Courts Rules. Instead, the Court of Appeal concluded that the Judge was not bound to strictly apply Rule 104 to the Commissioner's request. In the Court of Appeal's view, the necessity test provided for in Rule 104 would undermine the intent of paragraph 42(1)(c) of the Access to Information Act, which grants the Commissioner the clear possibility of appearing as a party, with leave of the court, in judicial review proceedings before the Federal Court. The Court of Appeal noted that, when exercising discretion to grant leave under paragraph 42(1)(c), the court should be satisfied that the Commissioner would be of assistance to the court in the judicial review proceeding.