COURT OF APPEAL FOR ONTARIO

CITATION: CanWest MediaWorks Inc. v. Canada (Attorney General), 2007 ONCA 567

DATE: 20070820

DOCKET: C46306 M34906

ROSENBERG, ARMSTRONG and JURIANSZ JJ.A.

BETWEEN:

CANWEST MEDIAWORKS INC.

Applicant (Appellant in Appeal)

and

ATTORNEY GENERAL OF CANADA

Respondent (Respondent in Appeal)

Martin Teplitsky, Q.C. and Andrew K. Lokan for the appellant

Joseph Cheng for the respondent

Heard: August 13, 2007

On appeal from the order of Justice Joan L. Lax of the Superior Court of Justice dated November 6, 2006.

ENDORSEMENT

[1] CanWest MediaWorks Inc. (“CanWest”) appeals the order of Justice Lax of the Superior Court of Justice dated November 6, 2006 which dismissed CanWest’s motion for a summons to issue under the Interprovincial Summonses Act R.S.O. 1990, c. I.12 to Professor Barbara Mintzes of British Columbia for the purpose of examining her in advance of the hearing of an application. The application is for, inter alia, a declaration that s. 3(1) of the Food and Drugs Act R.S., c. F-27 is inconsistent with s. 2(b) of the Canadian Charter of Rights and Freedoms. Section 3(1) of the Food and Drugs Act prohibits the advertising to the general public of certain prescription drugs listed in a schedule to the Act. Professor Mintzes is a leading expert on direct-to-consumer advertising of prescription drugs. She is also retained as a litigation consultant by the Attorney General in these proceedings.

[2] The Attorney General of Canada (the “AG”) moved to quash the appeal on the ground that the order of Lax J. is interlocutory and that we have no jurisdiction to hear the appeal. We reserved our decision on the motion to quash and then heard argument on the merits of the appeal.

The Motion to Quash

[3] Counsel for the AG submits that the order of Lax J. is interlocutory because no lis existed between CanWest and Professor Mintzes (who did not appear on the motion) and the dismissal of the motion did not finally resolve any issue between the only two parties to the litigation – CanWest and the AG.

[4] With respect, we disagree. In our view, this court’s judgment in Smerchanski v. Lewis (1980), 1980 1699 (ON CA), 30 O.R. (2d) 370 (C.A.) governs in the circumstances of this case. In Smerchanski, Arnup J.A. said at page 377:

…it is my view that the appealability of an order is determined by the nature of the order made and not by the identity of the successful party. If a stranger to the action who has been unsuccessful in an application made to the trial Judge has an immediate right of appeal, it seems to me clear that where the stranger succeeds before the trial Judge, the party to the action who failed in the issue with the stranger should have an immediate right of appeal. In short, an order made in an issue between a party and a stranger is either appealable or it is not, and if it is appealable, the party who lost in the issue has a right of appeal.

[5] Without expressly inviting this court to overrule Smerchanski, counsel for the AG submitted that the scope of the reasoning in that case is drawing considerable criticism both in legal commentary and in recent decisions of this court. See for example Sun Life Assurance Co. v. York Ridge Developments Ltd., [1998] O.J. No. 4899 (C.A.) and Royal Trust Corporation v. Fisherman (2001), 2001 4080 (ON CA), 55 O.R. (3d) 794 (C.A.).

[6] In Sun Life, the court distinguished Smerchanski. In Sun Life, it is clear that an order quashing a subpoena to a non-party was interlocutory because it did not finally dispose of the issue between the non-party and the party seeking to examine him. Similarly, in Royal Trust Corp., the court distinguished Smerchanski. The Royal Trust Corp. case turns on its own particular facts.

[7] Counsel for the AG seeks to limit the Smerchanski case to the situation where there are opposing positions taken between a non-party and one of the parties to the litigation. In our view, the recent decisions of this court have not so narrowed the scope of Smerchanski. See Morse Shoe (Canada) Ltd. v. Zellers Inc., 1997 1573 (ON CA), [1997] O.J. No. 1524 (C.A.) and Pennington v. Hawley, [2005] O.J. No. 3591 (C.A.). In Morse Shoe, Zellers and Hudson’s Bay Company appealed an order dismissing a motion for the production of documents by a non-party, First National Bank of Boston (“FNB”). In deciding whether the court had jurisdiction to hear the appeal, Austin J.A. said at para. 6:

It is clear that the order below would be final as against FNB and as between FNB and Zellers; the order finally disposes of the issue between them. I am therefore satisfied that this court has jurisdiction to hear the appeal notwithstanding that the only opposition to the application and to the appeal comes from the plaintiff rather than from FNB.

Similarly in Pennington, this court held that it had jurisdiction to hear an appeal by the defendant from an order that two limited partners (who were not parties to the proceeding) were entitled to vote in the election of a new general partner for the business. In that case, the court said at para. 23:

Nor do we think it necessary to deal at length with the issue of whether the Order appealed from is a final order or an interlocutory order. There is authority for the proposition that an order made in a contest between a party to a proceeding (Mr. Hawley, here) and someone who is not a party (Chalmers and Mr. Huq) is a final order if the order finally disposes of the rights of those persons in the issue between them. That is the case here. It is the nature of the order that determines its characteristics as “final” or “interlocutory”, not the party who is asserting opposition to it. See Smerchanski v. Lewis (1980), 1980 1699 (ON CA), 30 O.R. (2d) 370 (C.A.): Morse Shoe (Canada) Ltd. v. Zellers Inc. (1997) 1997 1573 (ON CA), 10 C.P.C. (4th) 390 (Ont. C.A.). [Emphasis added.]

[8] We therefore conclude that the order of the motion judge is a final order and that CanWest has a right of appeal to this court. The motion to quash is dismissed.

The Appeal

[9] The motion judge approached her consideration of whether to issue a summons to Professor Mintzes in two stages. In the first stage, she considered the application of rule 39.03 of the Rules of Civil Procedure. In the second stage, she considered the application of s. 5(1)(a) and (b) of the Interprovincial Summonses Act. Counsel for CanWest submits that the motion judge made three principal errors:

(i) she erred in failing to appreciate that it is counsel’s prerogative to call the witnesses of his or her choice;

(ii) she failed to apply the proper test under rule 39.03 of the Rules of Civil Procedure; and

(iii) she erred in failing to find that Professor Mintzes’ evidence is necessary for the due adjudication of the application and is reasonable and essential to the due administration of justice in Ontario pursuant to s. 5(1)(a) and (b) of the Interprovincial Summonses Act.

[10] We agree that, as a general proposition, counsel decides whom he or she will call as a witness and that it is counsel’s prerogative to do so. However, in the circumstances that obtain here, counsel must first satisfy the requirements of s. 5(1)(a) and (b) of the Interprovincial Summonses Act.

[11] Whether or not it is necessary, in a motion brought pursuant to s. 5(1) of the Interprovincial Summonses Act, to consider rule 39.03(1) of the Rules of Civil Procedure, the case was put before the motion judge and this court on that basis and we therefore intend to address the motion judge’s treatment of rule 39.03.

[12] If the evidence sought to be adduced from a non-party is relevant, there is a prima facie right to resort to rule 39.03(1) as long as the right is not exercised in a manner which constitutes an abuse of process. See Canada Metal Co. v. Heap (1975), 1975 675 (ON CA), 7 O.R. (2d) 185 (C.A.) at p. 192.

[13] While the motion judge referred to the above authority, counsel for CanWest submits that she dismissed the motion on the basis that caution must be exercised where applying rule 39.03 in the context of expert witnesses. She cited Niagara-on-the-Lake Association of Ratepayers v. The Corporation of the Town of Niagara-on-the-Lake (2003), 2003 34791 (ON SC), 63 O.R. (3d) 568 (S.C.J.). In our view, the Niagara-on-the-Lake case has no application to this case and the motion judge erred in relying on it in these circumstances.

[14] The evidence which CanWest seeks to obtain from Professor Mintzes is clearly relevant and we see no basis upon which to conclude that CanWest seeks to use it in a manner that would constitute an abuse of process. There may well be cases where an effort to use rule 39.03 to obtain expert evidence could constitute abuse of process but this is not one of them. We are satisfied that CanWest met the test under rule 39.03.

[15] We take a different view of the motion judge’s approach to s. 5(1) of the Interprovincial Summonses Act. The motion judge concluded that other expert witnesses, who have filed affidavits in support of the position of the Attorney General, will be available for cross-examination by counsel for CanWest. More than one of those witnesses is familiar with the work of Professor Mintzes and at least two of them are co-authors with her of academic articles that are relied upon by the AG. The motion judge concluded:

While the evidence of Dr. Mintzes may assist CanWest in the preparation of its s. 1 case, it is neither necessary for the adjudication of the proceeding nor essential to the due administration of justice in Ontario.

[16] In our view, this was a call for the motion judge to make and absent palpable and overriding error, we cannot intervene. There was a basis in the record for her to conclude as she did. No doubt it would be helpful to have Professor Mintzes’ evidence, but “helpful” is not the test.

[17] The appeal is therefore dismissed.

Costs

[18] We make no order as to costs in respect of the motion to quash. In respect of the appeal, costs shall be in the cause.

“M. Rosenberg J.A.”

“Robert P. Armstrong J.A.”

“R.G. Juriansz J.A.”