CanWest Media Works Inc. v. Canada (Attorney General), 2007 ONCA 567

• Judge: Rosenberg, Armstrong and Juriansz, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: August 20, 2007
• Jurisdiction: Ontario
• Citations: 2007 ONCA 567;(2007), 227 O.A.C. 116 (CA)

CanWest Media Works Inc. v. Can. (A.G.) (2007), 227 O.A.C. 116 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. AU.016

CanWest Mediaworks Inc. (applicant/appellant in appeal) v. Attorney General of Canada (respondent/respondent in appeal)

(C46306; M34906; 2007 ONCA 567)

Indexed As: CanWest Media Works Inc. v. Canada (Attorney General)

Ontario Court of Appeal

Rosenberg, Armstrong and Juriansz, JJ.A.

August 20, 2007.

Summary:

CanWest applied for a declaration that s. 3(1) of the Food and Drugs Act, which prohibited advertising to the general public respecting certain listed prescription drugs, violated s. 2(b) of the Charter. The respondent Attorney General had retained Mintzes, a leading expert on direct-to-consumer advertising of prescription drugs, as a consultant in the litigation. CanWest moved for a summons to issue under the Interprovincial Summonses Act to have Mintzes examined in advance of the hearing of the application.

The Ontario Superior Court, in a judgment reported [2006] O.T.C. 1026, dismissed the application. CanWest appealed. The Attorney General moved to quash the appeal on the ground that no appeal was available from the court's interlocutory order.

The Ontario Court of Appeal dismissed the appeal. The court dismissed the motion to quash, as the order appealed from was final, not interlocutory. An order made in a contest between CanWest and a nonparty (Mintzes) was a final order because it finally disposed of the rights to those two parties as between them. The nature of the order, not the parties to it, determined whether the order was final or interlocutory.

Evidence - Topic 5583

Witnesses - Competency and compellability - Compellability - Persons residing out of the jurisdiction - CanWest applied for a declaration that s. 3(1) of the Food and Drugs Act, which prohibited public advertising of list prescription drugs, violated s. 2(b) of the Charter - The Attorney General retained a leading expert on direct-to-consumer advertising of prescription drugs as a consultant - CanWest's motion for a summons under the Interprovincial Summonses Act to have the expert examined prior to the hearing was dismissed by the motions judge - CanWest appealed - The Ontario Court of Appeal dismissed the appeal - If the evidence sought to be adduced from the nonparty was relevant (which it was), there was a prima facie right to resort to rule 39.03(1) as long as exercising the right did not constitute an abuse of process (which it did not) - Where other expert witnesses filed affidavits in support of the Attorney General's position, and were available for cross-examination, the motions judge did not err in finding that examining the expert was neither necessary for the adjudication of the proceedings nor essential to the due administration of justice in Ontario - Absent palpable and overriding error (which was not present) "this was a call for the motions judge to make" - See paragraphs 9 to 16.

Practice - Topic 5729

Judgments and orders - Final judgments and orders - What constitute - [See Practice - Topic 5782 ].

Practice - Topic 5779

Judgments and orders - Interlocutory or interim orders or judgments - What constitutes - [See Practice - Topic 5782 ].

Practice - Topic 5782

Judgments and orders - Interlocutory or interim orders or judgments - Appeals - CanWest applied for a declaration that s. 3(1) of the Food and Drugs Act, which prohibited public advertising of list prescription drugs, violated s. 2(b) of the Charter - The Attorney General retained a leading expert on direct-to-consumer advertising of prescription drugs as a consultant - CanWest's motion for a summons under the Interprovincial Summonses Act to have the expert examined prior to the hearing was dismissed - CanWest appealed and the Attorney General moved to quash the appeal on the ground that there was no jurisdiction to hear an appeal from an interlocutory order - The Ontario Court of Appeal dismissed the application to quash - An order made in a contest between a party (CanWest) and a nonparty (expert) was a "final" order as it finally disposed of rights as between the party and nonparty - The nature of the order, not the parties to it, determined whether the order was "final" or "interlocutory" - See paragraphs 3 to 8.

Practice - Topic 8985

Appeals - When appeal available - From interlocutory ruling - [See Practice - Topic 5782 ].

Cases Noticed:

Smerchanski v. Lewis (1980), 30 O.R.(2d) 370 (C.A.), appld. [para. 4].

Sun Life Assurance Co. v. York Ridge Developments Ltd. et al. (1998), 116 O.A.C. 103 (C.A.), refd to. [para. 5].

Royal Trust Corp. of Canada et al. v. Fisherman et al. (2001), 149 O.A.C. 337; 55 O.R.(3d) 794 (C.A.), refd to. [para. 5].

Morse Shoe (Canada) Ltd. v. Zellers Inc. et al. (1997), 100 O.A.C. 116 (C.A.), refd to. [para. 7].

Pennington v. Hawley et al., [2005] O.A.C. Uned. 582 (C.A.), refd to. [para. 7].

Canada Metal Corp. v. Heap (1975), 7 O.R.(2d) 185 (C.A.), refd to. [para. 12].

Niagara-on-the-Lake Association of Ratepayers v. Niagara-on-the-Lake (Town), [2003] O.T.C. 182; 63 O.R.(3d) 568 (Sup. Ct.), refd to. [para. 13].

Counsel:

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

Joseph Cheng, for the respondent.

This appeal was heard on August 13, 2007, before Rosenberg, Armstrong and Juriansz, JJ.A., of the Ontario Court of Appeal.

On August 20, 2007, the following judgment was endorsed on the appeal record by the Court.