[2016] 4 F.C.R. D-14
Practice
Parties
Appeal from Federal Court order wherein Prothonotary granted motion by Information Commissioner of Canada (Commissioner) pursuant to Federal Courts Rules, SOR/98-106 (Rules), r. 369 for leave to be added as respondent to applicant’s application for judicial review as permitted by Access to Information Act, R.S.C., 1985, c. A-1 (Act), s. 42(1)(c) — Application relating to decisions by Minister of Health (Minister) to disclose information provided by applicant to Minister in response to access to information requests — In submitting abbreviated new drug submission, applicant required to provide information regarding its product — Such disclosure negatively impacting applicant’s scientific, proprietary interests, trade secrets — Prothonotary directing, inter alia, that Commissioner be served with filings, be permitted to make oral representations at hearing of application — Main issues whether Prothonotary breached procedural fairness by failing to consider applicant’s submissions, erred in law by adding Commissioner as respondent — Applicant pointing to manner in which Prothonotary identifying applicant, respondent to argue Prothonotary not considering its submissions — Prothonotary not breaching procedural fairness — Clear that Prothonotary referred to Commissioner as “the Information Commissioner of Canada” or “the Information Commissioner”, not as “applicant” — Applicant also pointing to Prothonotary’s order in Porter Airlines v. Canada (Attorney General) (October 24, 2016), T-1296-15 (F.C.) wherein Prothonotary referred to Commissioner as “applicant” — Order herein, order in Porter Airlines unrelated, each standing on its own — No requirement for prothonotaries, judges to use identical words or terms in their orders, judgments — Both orders clearly identifying who is who — Lack of specific mention to applicant’s request for oral hearing not supporting applicant’s argument that its submissions not considered — Prothonotary not obliged to hold oral hearing or provide reasons for not doing so — No breach of procedural fairness resulting from determination of motion in writing — As to second issue, applicant arguing Prothonotary erred by exercising discretion based on wrong principle of law or misapprehension of facts because not applying Rules, r. 104 as interpreted by case law — Prothonotary committing no such error — Strict interpretation of r. 104 without regard to statutory provisions undermining intention of Parliament that Commissioner may be granted leave to be added as party — Although r. 104, Act, s. 42(1)(c) not inconsistent on their face, strict interpretation of r. 104 likely making it impossible to grant leave to Commissioner — Issue here not whether Commissioner necessary party, but whether necessity only test for adding a party — Air Canada v. Thibodeau, 2012 FCA 14, [2013] 2 F.C.R. 155 distinguished, not to be relied on for proposition that necessity the only test, regardless of applicable statutory provision — R. 104 having to be adapted to permit Court to consider whether to exercise discretion to grant leave to Commissioner to be added as party — Court must consider whether, how Commissioner would assist Court, based on parties’ submissions, then determine whether to grant leave — Nothing on facts of present case to displace principle of deference — Lack of detailed reasons not detracting from deference owed — Appeal dismissed.
Apotex Inc. v. Canada (Health) (T-1511-15, T-1782-15, T-1783-15, 2016 FC 776, Kane J., order dated July 8, 2016, 30 pp.)