APOTEX INC. Appellant v. MINISTER OF, 2017 FCA 160

Date: 20170720 Dockets: A-259-16 A-260-16 A-261-16 Citation: 2017 FCA 160 CORAM: NEAR J.A. RENNIE J.A. GLEASON J.A. BETWEEN: APOTEX INC. Appellant and MINISTER OF HEALTH and ATTORNEY GENERAL OF CANADA and THE INFORMATION COMMISSIONER OF CANADA Respondents Heard at Toronto, Ontario, on March 27, 2017. Judgment delivered at Ottawa, Ontario, on July 20, 2017. REASONS FOR JUDGMENT BY: NEAR J.A. CONCURRED IN BY: RENNIE J.A. GLEASON J.A. . Date: 20170720 Dockets: A-259-16 A-260-16 A-261-16 Citation: 2017 FCA 160 CORAM: NEAR J.A. RENNIE J.A. GLEASON J.A. BETWEEN: APOTEX INC.

Appellant and MINISTER OF HEALTH and ATTORNEY GENERAL OF CANADA and THE INFORMATION COMMISSIONER OF CANADA Respondents REASONS FOR JUDGMENT NEAR J.A.

I. Introduction [1] At issue are three consolidated appeals of an order of the Federal Court, dated July 8, 2016 (2016 FC 776). Justice Kane (theJudge) dismissed Apotex Inc.’s (Apotex) motion to set aside Prothonotary Milczynski’s (the Prothonotary) order, dated April 4, 2016,granting the Information Commissioner of Canada (the Commissioner) leave to be added as a respondent to Apotex’s underlyingapplication for judicial review. II. Background [2] In response to three requests made under the Access to Information Act, R.S.C. 1985, c.

A-1 (the Act), the Minister of Health(the Minister) decided to disclose records Apotex had previously submitted when seeking approval for a pharmaceutical product. OnSeptember 8, 2015 and October 22, 2015, pursuant to subsection 44(1) of the Act, Apotex applied for judicial review of the Minister’sthree decisions.

Apotex alleged that the records were exempt from disclosure pursuant to subsection 20(1) of the Act, as the recordscontained: trade secrets; confidential financial, commercial, scientific, or technical information; and information that, if disclosed, couldreasonably be expected to prejudice Apotex’s competitive position or interfere with its contractual negotiations. [3] On February 29, 2016, the Commissioner brought a motion in writing seeking leave to be added as a respondent to Apotex’sapplication for judicial review pursuant to paragraph 42(1)(

c) of the Act: 42

(1) The Information Commissioner may 42

(1) Le Commissaire à l’information a qualité pour :(

c) with leave of the Court, appear as a party to anyreview applied for under

section 41 or 44.

c) comparaître, avec l’autorisation de la Cour, commepartie à une instance engagée en vertu des articles 41 ou44. [4] Apotex opposed the motion on the basis that the Commissioner had not demonstrated that her appearance was necessary inthe application for judicial review as is required under Rule 104 of the Federal Courts Rules, SOR/98-106 (the Rules): 104

(1) At any time, the Court may 104

(1) La Cour peut, à tout moment, ordonner :(

b) order that a person who ought to have been joined asa party or whose presence before the Court is necessaryto ensure that all matters in dispute in the proceedingmay be effectually and completely determined be addedas a party, but no person shall be added as a plaintiff orapplicant without his or her consent, signified in writingor in such other manner as the Court may order. (

b) order that a person who ought to have been joined asa party or whose presence before the Court is necessaryto ensure that all matters in dispute in the proceedingmay be effectually and completely determined be addedas a party, but no person shall be added as a plaintiff orapplicant without his or her consent, signified in writingor in such other manner as the Court may order. [5] The Prothonotary ordered, pursuant to paragraph 42(1)(

c) of the Act, that the Commissioner be granted leave to be added asa party, specifically a respondent, in Apotex’s application for judicial review. The Prothonotary did not provide detailed reasons for herorder (Apotex Inc. v. Minister of Health and Attorney General of Canada, (4 April 2016), Ottawa T-1511-15, T-1782-15, T-1783-15(F.C.)). [6] Apotex brought a motion before the Judge to set aside the Prothonotary’s order. III. Decision of the Federal Court Judge [7] The Judge applied the Aqua-Gem standard of review to the Prothonotary’s order (Canada v.

Aqua-Gem Investments Ltd., (FCA), [1993] 2 F.C.R. 425, 149 N.R. 273 (F.C.A.)). The parties had accepted that the decision to add theCommissioner as a respondent was not vital to the outcome of Apotex’s judicial review application (reasons at para. 11).

Therefore, theJudge determined that the Prothonotary’s discretionary order was owed deference and would not be disturbed unless “based upon awrong principle or upon a misapprehension of facts” (reasons at paras. 9-15, 75-80). [8] Before the Judge, Apotex submitted that the Prothonotary had legally erred by failing to properly apply Rule 104 to theCommissioner’s request for leave to be added as a party. Apotex argued that, according to the decision of a single judge of this Court inAir Canada v.

Thibodeau, 2012 FCA 14, 438 N.R. 321 [Thibodeau], Rule 104 imposes a strict test of necessity such that a respondentshould only be added where it would be bound by the result in the underlying proceeding. [9] The Judge determined that Thibodeau “should not be relied on for the proposition that necessity is the only test” (reasons atpara. 64). The Judge found that the appellate judge in Thibodeau had not addressed the interplay between the Rules and the particularstatutory provision at issue there, paragraph 78(1)(

c) of the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.), which matches thelanguage in paragraph 42(1)(

c) of the Act. The Judge also found that Thibodeau was distinguishable on the facts because, in that case,the Commissioner of Official Languages had chosen to be and participated as an intervener in the Federal Court and then sought partystatus, too late, on appeal (reasons at para. 65). [10] The Judge found that if Rule 104 was strictly applied, the Commissioner would rarely meet the necessity test and, as a result,Parliament’s intention that the Commissioner may be granted leave to be a party under paragraph 42(1)(

c) of the Act would beundermined. The Judge, therefore, determined that Rule 104 had to be “adapted accordingly” in light of the provisions in the Act(reasons at paras. 52-54). The Judge noted that this Court relied on the same principle when considering the predecessor to Rule 104 inCanada (Human Rights Commission) v. Canada (Attorney General), [1994] 2 F.C.R. 447, 164 N.R. 361 (F.C.A.) [Canada (HRC)](reasons at para 55). Justice Décary, writing on behalf of a panel of this Court, noted in Canada (HRC):

The Rules are subject, of course, to provisions in Acts of Parliament that may grant certain tribunals a distinct possibility of participatingin judicial proceedings, either as a party or intervenor as of right, or as a party or intervenor with leave of the Court. Where suchprovisions exists, the Rules shall be adapted accordingly […] For examples of statutory provisions giving a tribunal the possibility ofparticipating in judicial proceedings, see: the Official Languages Act, R.S.C., 1985 (4th Supp), c. 31, s. 78(1)(a), (

b) and (

c) and 78(3);the Access to Information Act, R.S.C. 1985, c. A-1, ss. 42(1)(a), (

b) and (c)[...] (Canada (HRC) at 461, footnote 25) [11] The Judge went on to consider the criteria, beyond necessity, that have guided the court in granting leave to the Commissionerto appear as a party under paragraph 42(1)(

c) of the Act. The Judge cited, with approval, Prothonotary Tabib’s approach in CanonCanada Inc. v. Infrastructure Canada and the Information Commissioner of Canada, (28 February 2014), Ottawa T-1987-13 (F.C.)[Canon]. There, Prothonotary Tabib noted that the criteria should be “akin to that on a motion for leave to intervene pursuant to Rule109. The Court should be satisfied that the participation of the [Commissioner] would assist the Court to determine a factual or legalissue in the proceedings” (reasons at para. 71, citing Canon at 2-3).

The Judge found that “this approach reflects the need to reconcileRule 104 with the Act to respect both the intention of the Act and the requirement that leave be sought to be added as a party” (reasons atpara. 72).

The Judge noted that the Commissioner will not automatically be added as a party but that the court should consider on a caseby case basis “whether and how the addition of the Commissioner would assist the Court” (reasons at para.73). [12] The Judge determined that even though the Commissioner had not demonstrated that her participation was necessary, theProthonotary had found sufficient grounds to allow the Commissioner to appear as a party in accordance with paragraph 42(1)(c).

TheJudge concluded that there was no basis to interfere with this finding and, therefore, dismissed Apotex’s motion to set aside theProthonotary’s order (reasons at para. 85). IV. Issue [13] I would characterize the issue on appeal as follows: Did the Judge err in refusing to interfere with the Prothonotary’s ordergranting leave to the Commissioner to appear as a respondent to Apotex’s application for judicial review? V. Analysis A.

Standard of Review [14] Following the Judge’s decision, this Court revisited the standard of review to be applied to discretionary decisions ofprothonotaries and decisions made by judges on appeals of prothonotaries’ decisions in Hospira Healthcare Corp. v. Kennedy Institute ofRheumatology, 2016 FCA 215, 402 D.L.R. (4th) 497 [Hospira]. In Hospira, a five-member panel of this Court replaced the Aqua-Gemstandard of review with that articulated in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 [Housen].

As such, on appeal of aprothonotary’s order to the Federal Court, a judge must review whether the prothonotary made an error of law or a palpable andoverriding error in determining a question of fact or a question of mixed fact and law (Hospira at para. 79). Further, it was held that thisCourt must apply the Housen standard on appeal of a Federal Court judge’s review of a prothonotary’s order.

Therefore, in the case atbar, this Court must determine whether the Judge erred in law or made a palpable and overriding error in refusing to interfere with theProthonotary’s order granting leave to the Commissioner to appear as a party (Hospira at paras. 83-84; see also Sikes v. EncanaCorporation, 2017 FCA 37 at para. 12, 144 C.P.R. (4th) 472). B. Did the Judge err in refusing to interfere with the Prothonotary’s order? [15] Apotex submits that the Judge erred in law in finding that Rule 104 did not apply to the Commissioner’s request for leave tobe added as a party.

Apotex argues that Thibodeau was binding on the Judge and there was no basis to distinguish it from the matterbefore her. Further, Apotex argues that the Judge’s

interpretation creates an inconsistency with the test for granting leave to interveneunder Rule 109. [16] In my view, the Judge did not err in refusing to interfere with the Prothonotary’s order even though the Commissioner had notdemonstrated it was a necessary party to Apotex’s application for judicial review. The Judge was not bound to strictly apply Rule 104 tothe Commissioner’s request. I agree with the Judge that Thibodeau is distinguishable and, in any event, a decision of a single judge ofthis Court sitting as a motions judge does not bind a three-member panel of this Court (Sport Maska Inc. v.

Bauer Hockey Corp., 2016FCA 44 at paras. 37-38, 480 N.R. 387). I find Canada (HRC), a decision of a three-member panel of this Court, to be the morepersuasive authority. [17] Even in light of Rule 104, Parliament’s intention to have an agent of Parliament appear in judicial proceedings as a party, withleave of the court, must be given effect. In my view, the necessity test provided for in Rule 104 would undermine the intent of paragraph42(1)(

c) of the Act, which grants the Commissioner the clear possibility of appearing as a party, with leave of the court, in judicialreview proceedings before the Federal Court.

I accept that, when exercising its discretion to grant leave under paragraph 42(1)(c), thecourt should be satisfied that the Commissioner would be of assistance to the court in the judicial review proceeding (see Canon at 2-3).While I recognize that this guiding criteria borrows language from Rule 109, I do not accept that the court is obligated to apply thefactors relevant to a motion for leave to intervene under Rule 109 (see Rothmans, Benson & Hedges Inc. v.

Canada (Attorney General), (FCA), [1990] 1 F.C.R. 90, 103 N.R. 391 (F.C.A.), where this Court affirmed the correctness of the factors set out bythe Federal Court in (FC), [1990] 1 F.C.R. 74 at 79-80, 29 F.T.R. 267). I agree with Prothonotary Tabib in Canonwhere she determined that an assistance test furthers the Commissioner’s participation, in accordance with Parliamentary intent, whilestill recognizing that paragraph 42(1)(

c) does not give the Commissioner party status as of right.

[ 18 ] Whether the Commissioner will be of assistance must be assessed by the court on a case-by-case basis. For example, the Federal Court has previously granted the Commissioner leave to appear as a party where it was found that she would provide a distinct point of view on a motion for a confidentiality order ( Canon ) or where she had completed an investigation into the relevant complaint and it was found that she would provide knowledge and expertise relating to the Act , its jurisprudence, and the relevant legal issue ( Porter Airlines Inc. v.

Attorney General of Canada , (23 March 2016), Ottawa T-1491-15 (F.C.) at paras. 4-5; see also Canadian Tobacco Manufacturers’ Council v. Canada (Minister of National Revenue) , (18 August 2000) Ottawa T-877-00 (F.C.) at paras. 7-8). [ 19 ] On a contested motion, where the parties raised different

interpretations of the applicable legal test, it would have been helpful had the Prothonotary provided more detailed reasons for why she granted leave to the Commissioner to appear as a party. While the Judge’s reasons included an analysis of what test the Commissioner must meet to be added as a respondent, the Judge did not clearly apply this test to assess whether and how the addition of the Commissioner would assist the Court in Apotex’s particular application for judicial review. Rather, the Judge determined that the Commissioner provided sufficient grounds for the Prothonotary to grant leave in accordance with paragraph 42(1)(

c) of the Act and that it was unnecessary to consider Apotex’s opposition to these grounds because she was not considering the Prothonotary’s order de novo (reasons at para. 85). [ 20 ] When reviewed on the Housen standard, I find that the Judge did not err in refusing to interfere with the Prothonotary’s finding of sufficient grounds to grant leave to the Commissioner to appear as a party. Before the Prothonotary, the Commissioner submitted that her participation in Apotex’s application for judicial review would be of assistance to the court.

Apotex had expressed an intention to reverse the order of evidence in its judicial review which, the Commissioner alleged, could reverse the burden of proof. The Commissioner argued that this reversal was contrary to the jurisprudence under

section 20 of the Act and would impact the access to information regime. The Commissioner highlighted her expertise and experience in the

interpretation and administration of the Act , including the application of the

section 20 exemption. The Commissioner also noted that none of the requesters of the records were parties to the application for judicial review and, as such, her participation would further the Court’s consideration of requesters’ rights. I recognize that there was limited evidence before the Prothonotary, however, in my view, there was a sufficient basis on which the Judge could have concluded that the Prothonotary did not commit a reviewable error in granting the Commissioner’s motion. VI. Conclusion [ 21 ] For the foregoing reasons, I would dismiss the appeal, with costs. "David G. Near" J.A. “I agree.

Donald J. Rennie J.A.” “I agree. Mary J.L. Gleason J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD AN APPEAL FROM THE ORDER OF THE HONOURABLE JUSTICE KANE, DATED JULY 8, 2016, DOCKET NUMBER T-1511-15. DOCKETS: A-259-16, A-260-16, A-261-16 STYLE OF CAUSE: APOTEX INC. v. MINISTER OF HEALTH and AGC and THE INFORMATION COMMISSIONER OF CANADA PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: March 27, 2017 REASONS FOR JUDGMENT BY: NEAR J.A.

CONCURRED IN BY: RENNIE J.A. GLEASON J.A. DATED: July 20, 2017 APPEARANCES : Jerry Topolski Jaro Mazzola For The Appellant Louisa Garib Aditya Ramachandran For The Respondent THE INFORMATION COMMISSIONER OF CANADA SOLICITORS OF RECORD : Goodmans LLP Toronto, Ontario For The Appellant Nathalie G. Drouin Deputy Attorney General of Canada For The RespondentS MINISTER OF HEALTH and ATTORNEY GENERAL OF CANADA The Information Commissioner of Canada Ottawa, Ontario For The Respondent THE INFORMATION COMMISSIONER OF CANADA