As we reported, Apotex Inc. applied for judicial review of the Minister’s decisions to disclose information from Apotex’s abbreviated new drug submission in response to an access to information request. The Federal Court of Appeal upheld an order adding the Commissioner of Information as a respondent, holding that the test was whether the Commissioner’s participation would assist the court, and that there was sufficient evidence for the prothonotary to grant the Commissioner’s motion.

Case:   Apotex Inc v Canada (Minister of Health), 2017 FCA 160

Nature of case:   Appeal from Order granting leave to add respondent to application for judicial review of decision to disclose information

Successful parties:   The Minister of Health (Minister), the Attorney General of Canada and the Commissioner of Information of Canada (Commissioner)

Date of decision:   July 20, 2017


On September 8, 2015, Apotex commenced three applications for judicial review of the Minister’s decisions to disclose Apotex’s information as the information contained (i) trade secrets; (ii) confidential financial, commercial, scientific or technical information; (iii) information that could reasonably expect to cause material financial loss or gain, or prejudice Apotex’s competitive position if disclosed; and (iv) information that could reasonably be expected to interfere with contractual or other negotiations of Apotex if disclosed. Apotex also alleged a lack of procedural fairness. The Commissioner successfully brought a motion to be added as a respondent under the Access to Information Act.

On appeal, the Federal Court (FC) found that the prothonotary had sufficient grounds under the Access to Information Act to add the Commissioner as a respondent and dismissed Apotex’s allegation that the prothonotary breached procedural fairness by failing to consider its submissions and request for an oral hearing.

Standard of review

The Federal Court of Appeal (FCA), following its previous application of the standard of review set by the Supreme Court in Housen v Nikolaisen, 2002 SCC 33 to all appeals (reported on here and here), considered whether the FC’s refusal to interfere with the prothonotary’s order was an error in law or a palpable and overriding error.

Adding the Commissioner as a respondent

The FCA held that the FC did not err by not interfering with the prothonotary’s order. Although the FCA acknowledged that the Commissioner had not demonstrated it was a “necessary” party to the proceedings, as required under the Federal Courts Rules, Justice Near agreed that the court was not bound to strictly apply this requirement. Given the governing state, the court was also required to give effect to Parliament’s intent to have an agent of Parliament appear as a party. The statute grants the Commissioner the clear possibility of appearing as a party, and the court must consider whether an added party will be of assistance to the court on a case-by-case basis.

The FCA held that there was sufficient basis for the FC to find that the prothonotary did not commit a reviewable error in granting the Commissioner’s motion, and dismissed the appeal.

Links to decisions:

FCA Decision: Apotex Inc v Canada (Health), 2017 FCA 160

FC Decision: Apotex Inc v Canada (Health), 2016 FC 776

Order of Prothonotary (unreported): Order dated April 4, 2016