Necessity Not the Only Test for Parties Seeking to be Added to a Proceeding

Justice Kane’s decision in Apotex Inc. v. Minister of Health, 2016 FC 776, has clarified that not all parties will be required to satisfy the strict test of necessity in order to be added to a proceeding.

Justice Kane’s decision arose in the context of an Order which had allowed the Information Commissioner of Canada to be added as a Respondent to an application commenced by Apotex. The underlying application was for judicial review of the Minister of Health’s decision to disclose information from Apotex’ Abbreviated New Drug Submission to a party that had filed an access to information request. After Apotex commenced the application for judicial review, the Commissioner successfully brought a motion to be added as a respondent in the judicial review application as it was permitted to do under paragraph 42(1)(c) of the Access to Information Act.

On appeal, Apotex argued that the Prothonotary had erred by failing to apply the stringent test of necessity before a party would be added under Rule 104 of the Federal Court Rules. In Apotex’ view, special circumstances had to exist to justify a departure from the rule that it is up to the applicant to identify the respondent.

The Commissioner accepted that the test under Rule 104 was stringent, but argued that the jurisprudence did not address application of the rule when a statutory provision specifically provided for an Agent of Parliament to be added as a party. In the Commissioner’s case, the Access to Information Act specifically permitted the Commissioner to seek leave of the Court to be added as a respondent.

Justice Kane agreed with the Commissioner that a strict interpretation of Rule 104 without considering the Access to Information Act could undermine the intent of Parliament:

[54] Although Rule 104 and paragraph 42(1)(c) may not be inconsistent on their face, the strict interpretation of Rule 104 would likely make it impossible in most circumstances to grant leave to the Commissioner. The Rule must be adapted accordingly.

Apotex pointed to Thibodeau, a case in which the Court of Appeal denied a motion by the Commission of Official Languages (“COL”) to be added as a respondent, even though the Official Languages Act provided that the COL could be granted leave to be added as a party. In that case, the FCA held that a person seeking to be joined as a party must be someone whose presence is necessary. Justice Kane distinguished Thibodeau, holding:

[64] The issue in the present case is not what “necessary” means or whether the Commissioner is a necessary party, but whether necessity is the only test for adding a party, as found in Thibodeau. In my view, Thibodeau can be distinguished and, with respect, should not be relied on for the proposition that necessity is the only test, regardless of an applicable statutory provision. First, it appears that Justice Blais accepted that Rule 104 applied in the context of the statutory provision, but did not address the implications or whether the Rules could override the statutory provision to the extent that the statutory intent was impaired. Second, it appears that Rule 1.1 was not raised, which provides that the statutory provision prevails to the extent of any inconsistency with the Rules. Third, it appears that the earlier jurisprudence of Canada (HRC), which specifically states that the Rules should be adapted where the statute grants tribunals the possibility of participating and specifically mentions the Access to Information Act, was not raised to the Court of Appeal’s attention in Thibodeau.

Justice Kane went on to conclude that the Commissioner would not automatically be added as a party in every case. Rather, the Court would have to consider whether and how the addition of the Commissioner would assist the Court, based on submissions made by the parties.

Apotex has appealed the decision of Justice Kane.