Federal Court of Appeal Considers Reviewing of Evidence in Judicial Review Applications

Peter Neufeld, B. Soc. Sc., J.D.Administrative Law, Appeals, Business Litigation, Civil Litigation, Commercial, Commercial Litigation, Judicial Review0 Comments

In judicial review applications, like most legal proceedings, evidence plays an essential role in securing a successful result. This includes not just the quality of the evidence, but the process through which the court considers that evidence. The Federal Court of Appeal’s recent decision in Apotex Inc. v. Canada (Health), 2018 FCA 147 (“Apotex”) affirms the control accorded to judges when reviewing evidence in judicial review applications.


Apotex involved a pharmaceutical company seeking judicial review of three judgments from Health Canada regarding certain facilities in India owned by the company’s affiliates:

  1. Health Canada’s September 2014 decision to impose an import ban on drug products from these facilities;
  2. Health Canada’s August 2015 decision to vary the terms and conditions of the facilities’ licenses, which continued the import ban for certain drugs;
  3. Health Canada’s Fall 2015 decision to refuse to end a November 2014 decision that blocked regulatory approval for certain products from the facilities unless Health Canada received information confirming the integrity of the facilities’ test data.

Manson J. quashed the first and second decisions. The first decision was quashed on the basis that, in imposing the ban, the Minister of Health acted with improper political purposes and failed to comply with the duty of procedural fairness. Manson J. quashed the second decision due to its close connection to the first decision.

Russell J. (the “application judge”) dismissed the company’s third judicial review application, finding that the company failed to establish that the decision to maintain the November 2014 decision was based on the import ban as opposed to legitimate concerns regarding the integrity of test data from the facilities.

Federal Court of Appeal

The company appealed the application judge’s decision to the Federal Court of Appeal. One issue on appeal was whether the application judge committed a reviewable error in bifurcating his analysis of the evidence regarding Health Canada’s motivation behind the November 2014 decision. The company argued that, since the application judge (1) first accepted and made findings based on original evidence of an affiant and then (2) considered whether evidence disclosed after the initial hearing displaced those findings, the judge failed to consider the evidence in its totality. Likewise, the company argued that the application judge failed to consider the credibility of the affiant’s evidence in light of the evidence as a whole.

Laskin J.A., writing for the three-judge panel, rejected the company’s argument, noting that there “is no prescriptive methodology for a judge at first instance to follow in arriving at his or her findings, provided that all of the evidence is considered”. Laskin J.A. also noted that the application judge was permitted to test tentative conclusions against additional evidence.

A second issue on appeal was whether the application judge committed a reviewable error in failing to draw an adverse inference against Health Canada based on the nature and extent of its evidence. Laskin J.A. held that drawing an adverse inference is discretionary and should be exercised only where warranted in the circumstances. Laskin J.A. found that, in the circumstances of this case, the application judge did not commit a reviewable error.

Some lawyers at Gilbertson Davis LLP have experience in representing clients before tribunals and before courts for judicial review applications. Please contact the firm for an initial consultation.


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About the Author
Peter Neufeld, B. Soc. Sc., J.D.

Peter Neufeld, B. Soc. Sc., J.D.

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