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.
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