Background: See section “Challenging the Information Commissioner’s participation in court proceedings” of the Commissioner’s 2016-2017 Annual Report, and section “Reversing the burden in third party applications” of the Commissioner’s 2015-2016 Annual Report.
On July 20, 2017, the Federal Court of Appeal dismissed Apotex’s appeal of a decision of a Judge of the Federal Court, which had upheld the decision of the Prothonotary to add the Commissioner as a party to Apotex’s three applications for judicial review against Health Canada under section 44 of the Act. Paragraph 42(1)(c) of the Act allows the Commissioner to, with leave of the Court, appear as a party to any judicial review proceeding under the Act. The Federal Court of Appeal confirmed that the criterion to be applied in deciding whether to add the Commissioner as a party to judicial review proceedings under the Act is: whether she would be of assistance to the Court.
The Federal Court of Appeal rejected Apotex’s argument that paragraph 42(1)(c) of the Act required the Commissioner to demonstrate that she is a necessary party in accordance with Rule 104 of the Federal Courts Rules. The Federal Court of Appeal found that the necessity test “would undermine the intent of paragraph 42(1)(c) of the 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 Federal Court of Appeal found no error in the Federal Court’s application of the criterion of assistance, which is to be determined on a case-by-case basis. The Federal Court of Appeal noted examples of where the Federal Court had previously been satisfied that the Commissioner met this test, which include: where the Commissioner would provide a distinct point of view on a motion for a confidentiality order, and where the Commissioner had investigated the relevant complaint and the Commissioner would provide knowledge and expertise in relation to the Act, its jurisprudence, and the relevant legal issue.
The Federal Court of Appeal noted the following submissions that had been made by the Commissioner in support of her motion before the Prothonotary of the Federal Court: (1) the Commissioner’s concern that Apotex’s stated intention to seek to reverse the order of evidence in the proceedings could reverse the legal burden of proof; (2) the Commissioner’s expertise in relation to the Act; and, (3) the Commissioner’s intention to further the Court’s considerations of requesters’ rights, given that no requestor is a party to the proceedings. Accordingly, the Federal Court of Appeal found that there was a sufficient basis on which the Judge of the Federal Court could have concluded that Prothonotary committed no reviewable error in granting the Commissioner’s motion to be added as a party. Apotex’s appeal was thus dismissed, with costs.