Canada (Minister of Health) v. Apotex Inc.
The Court dismissed the appeal, holding that Lemieux J. did not err in declining to disturb the Prothonotary's order: by relying on the fact of consulting legal advisors to justify its conduct the Minister placed communications with counsel in issue and thereby may have impliedly waived privilege such that...
Source-derived case information.
- Citation
- 2004 FCA 280
- Parties
- Appellant: The Minister of Health; Appellant: The Attorney General of Canada; Respondent: Apotex Inc.
- Court
- Federal Court of Appeal
- Jurisdiction
- Canada
- Judgment Date
- 1 September 2004
- Procedural Posture
- Appeal to the Federal Court of Appeal From a Federal Court Order on Disclosure and Privilege / Judgment on Appeal (oral Reasons Delivered From the Bench)
- Outcome
- Appeal dismissed with costs.
- Legal Topics
- Solicitor Client Privilege, Implied Waiver, Disclosure of Communications With Legal Advisors, Judicial Review of Disclosure Orders, Prothonotary Procedure, Reasonableness of Delay in Regulatory Decisions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Minister of Health
Appellant
The Attorney General of Canada
Appellant
Apotex Inc.
Respondent
Procedural Posture
Appeal to the Federal Court of Appeal From a Federal Court Order on Disclosure and Privilege / Judgment on Appeal (oral Reasons Delivered From the Bench)
Legal Issues
- 1 Whether reliance on having consulted legal advisors to justify conduct constitutes an implied waiver of solicitor-client privilege
- 2 Whether communications between the Minister and her legal advisors must be disclosed
- 3 Whether the Federal Court erred in declining to interfere with the Prothonotary's disclosure order
Ratio Decidendi
The Court dismissed the appeal, holding that Lemieux J. did not err in declining to disturb the Prothonotary's order: by relying on the fact of consulting legal advisors to justify its conduct the Minister placed communications with counsel in issue and thereby may have impliedly waived privilege such that disclosure or an undertaking not to rely on the consultations was appropriate.
Court Disposition
Appeal dismissed with costs.
Orders
- Appeal dismissed with costs
Full Case Text
Judgment text and source record
1 paragraphs
Canada (Minister of Health) v. Apotex Inc. Court (s) Database Federal Court of Appeal Decisions Date 2004-09-01 Neutral citation 2004 FCA 280 File numbers A-605-03 Notes Digest Decision Content Date: 20040901 Docket: A-605-03 Citation: 2004 FCA 280 CORAM: RICHARD C.J. DÉCARY J.A. EVANS J.A. BETWEEN: THE MINISTER OF HEALTH and THE ATTORNEY GENERAL OF CANADA Appellants and APOTEX INC. Respondent Heard at Ottawa, Ontario, on September 1, 2004. Judgment delivered from the Bench at Ottawa, Ontario, on September 1, 2004. REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A. Date: 20040901 Docket: A-605-03 Citation: 2004 FCA 280 CORAM: RICHARD C.J. DÉCARY J.A. EVANS J.A. BETWEEN: THE MINISTER OF HEALTH and THE ATTORNEY GENERAL OF CANADA Appellants and APOTEX INC. Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Ottawa, Ontario, on September 1, 2004) EVANS J.A. [1] This is an appeal from an order of Lemieux J. of the Federal Court, dated December 17, 2003 (2003 FC 1480), dismissing an appeal from an order of Lafrenière P., dated June 17, 2003. The Prothonotary had ordered the disclosure of communications between the Minister and her legal advisors: he held that the Minister had impliedly waived legal privilege for these communications by relying in her statement of defence on the fact that she had consulted with her lawyers in order to demonstrate the reasonableness of the delay in issuing an NOC to Apotex. As an alternative to disclosure of the communications, the Prothonotary invited the Minister to undertake not to rely on the fact of the consultations in its defence to Apotex' action. [2] We are not persuaded that Lemieux J. committed any reversible error to declining to interfere with the Prothonotary's order. In his reasons for decision, Lemieux J. said (at paragraph 44): In the circumstances of this case, by relying on the fact of taking legal advice necessarily puts in issue the communications between the Minister's officials and her legal advisors in such a way that it would be unfair to shield those communications from disclosure. [3] For these reasons, the appeal will be dismissed with costs. "John M. Evans" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-605-03 STYLE OF CAUSE: THE MINISTER OF HEALTH and THE ATTORNEY OF CANADA v. APOTEX INC. APPEAL FROM AN ORDER OF THE FEDERAL COURT DATED DECEMBER 17, 2004, FILE NO. T-1118-00 PLACE OF HEARING: OTTAWA, ONTARIO DATE OF HEARING: SEPTEMBER 1, 2004 REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A. APPEARANCES: Ms. Marie Crowley FOR THE APPELLANTS Mr. Nando De Luca FOR THE RESPONDENT SOLICITORS OF RECORD: Mr. Morris Rosenberg Deputy Attorney General of Canada FOR THE APPELLANTS Goodmans LLP FOR THE RESPONDENT Toronto, Ontario