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Appeals - Leave to Appeal - Federal Cases. Apotex Inc. v. Allergan Inc.
In Apotex Inc. v. Allergan Inc. (Fed CA, 2020) the Federal Court of Appeal considers the normal test for leave to appeal in the Federal system, with an exception:[8] The normal standard for granting leave to appeal to this Court under Rule 352 is a "“fairly arguable case”": see, e.g., Lukács v. Swoop Inc., 2019 FCA 145 at para. 19; Lufthansa German Airlines v. Canadian Transportation Agency, 2005 FCA 295, 346 N.R. 79 at para. 9; Canada (Minister of Human Resources Development) v. Rafuse, 2002 FCA 31, 222 F.T.R. 160 at para. 12; Martin v. Canada (Minister of Human Resources Development) (1999), 252 N.R. 141 (F.C.A.).
[9] The evaluation of a "“fairly arguable case”" must take place bearing in mind the appellate standard of review: in related contexts, see Hébert v. Wenham, 2020 FCA 186 at paras. 11-14 and Raincoast Conservation Foundation v. Canada (Attorney General), 2019 FCA 224 at para. 16. In particular, the applicant must show that it can arguably overcome any deferential standard that applies in the appeal.
[10] Thus, in practical terms, a party moving for leave to appeal can make out a fairly arguable case more easily under correctness review than under review for palpable and overriding error. Showing that something arguably fails correctness review—i.e., is arguably wrong—is one thing. Showing that something arguably fails review for palpable and overriding error—i.e., the arguable presence of one or more obvious errors which individually or collectively may affect the outcome of the matter—is quite another. See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215, [2017] 1 F.C.R. 331; Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, [2018] 2 F.C.R. 344 at paras. 58-74.
[11] The considerable deference this Court gives to case management orders adds to the burden the applicant for leave to appeal must surmount.
[12] In deciding an application for leave to appeal, the Court must keep in mind that good counsel, in pursuing the interests of their clients, tend to characterize something as an error of law or of extricable principle when, in fact, it is nothing of the sort. The Court must scrutinize the alleged error to see if it is, despite what counsel says, a factually suffused matter that can be set aside only for palpable and overriding error: Canada (National Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250, [2014] 2 F.C.R. 557 at paras. 49-50.
[13] A fairly arguable case is the usual and default standard for motions for leave to appeal. This merely confirms that there is no sense granting leave to an appeal that is very unlikely to succeed. But sometimes legislation providing for motions for leave to appeal requires the applicant for leave to show more: e.g., Raincoast at paras. 9-16. To find out whether this is so, we must interpret the legislation in light of its text, context and purpose: see, e.g., Re Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193 and Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559.
[14] Doing this, we conclude that the Regulations require an applicant to show more than just arguability. The 2017 amendments to the Regulations were aimed at expedition and preventing unnecessary appeals. They removed the ability of a party to appeal interlocutory decisions as of right. They also permitted appeals to go directly to this Court, bypassing one level of court. These suggest that only interlocutory matters of prime significance and materiality should be given leave and, even then, they must be dealt with quickly. The Regulatory Impact Analysis Statement confirms and underscores this: see Canada Gazette Part II, v. 151, Extra No. 1 (September 7, 2017) at 34.
[15] Thus, an applicant for leave to appeal must also persuade the Court that its decision on the interlocutory appeal will have a direct impact on the overall success or failure of the case.
[16] By way of illustration, leave should be denied where the Prothonotary has upheld a party’s refusal to answer questions and the answers to the questions will not have a direct impact on the success or failure of the case. This is all the more so where, either as part of an assessment of proportionality or otherwise, the Prothonotary has commented on the relationship between a question and the issues that the case will turn upon. This is usually a factually suffused assessment calling for deference.
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