November 27, 2007
In a pair of decisions, the Court of Appeal has indicated that judicial review applications brought by CGPA and Apotex attacking the vires of the Data Protection Regulations brought into force in October 2006 may be heard.
In a first appeal, Apotex was successful in overturning the decision of the motions judge who had found that Apotex did not have standing and struck out Apotex' application. The Court of Appeal found that the question of standing was subsumed in the motion to strike test and that for the purposes of the motion to strike, it was not plain and obvious that Apotex was not directly affected by the Data Protection Regulations and therefore allowed the appeal. The Court comments however that it will be up to the trial judge ultimately to consider the issue of standing.
In a second appeal, the Attorney General had sought to overturn a motions judge's decision finding that the Motion to Strike should be dismissed. The appeal was dismissed. The Court of Appeal found that the motions judge did not proceed on a wrong principle of law in finding the application should not be struck as it was not plain and obvious that the CGPA did not have public standing. Accordingly, these two proceedings may now proceed.
The full text of these decision can be found at: http://decisions.fca-caf.gc.ca/en/2007/2007fca374/2007fca374.html