Court was not convinced that the proposed intervenor would offer useful submissions
The Federal Court has rejected the Intellectual Property Institute of Canada's (IPIC) bid to intervene in a case involving the interpretation of "due care" under the recent amendments to the Patent Act.
The Commissioner of Patents refused to reinstate Rober Taillefer's patent because he did not take "due care" to keep his patent in good standing. He applied for judicial review of the commissioner's decision. The IPIC proposed to intervene, saying that it seeks to assist the court in assessing the reasonableness of the commissioner's interpretation of the "due care" standard under par. 46(5)(b) of the Patent Act.
IPIC emphasized that this is the first time the court will consider the "due care" standard under the recent amendments to the Patent Act. The sole issue in Taillefer v. Canada (Attorney General), 2023 FC 1033, is whether IPIC should be granted leave to intervene.
While the Attorney General conceded that IPIC, as an industry organization, has a genuine interest in the matter, the Federal Court was not satisfied that IPIC would offer useful submissions.
The Federal Court noted that IPIC intends to argue that the commissioner's decision was unreasonable as it failed to show that it was alive to the context and purpose of the relevant provision of the Patent Act. IPIC asserted the commissioner applied an unreasonably elevated "due care" standard in a manner that is contrary to modern principles of statutory construction.
IPIC said that if the court allows it to intervene, it will use its "expertise, and broader perspective, in the area of patent law to assist the court in assessing the reasonableness of the commissioner's decision."
The court noted that IPIC's submissions are focused on the proper approach to statutory interpretation. The court cited case law stating that "the court, as a reviewing court engaged in reasonableness review, will not develop its interpretation of the regulation and use it as a yardstick to see whether the administrative decision-maker's interpretation measures up, nor will it impose its interpretation over that of the administrative decision-maker."
Furthermore, the court noted from case law that it is for the administrative decision-maker to decide the merits, including issues of legislative interpretation. The reviewing court reviews the administrative decision, nothing more.
Accordingly, the court found that intervention is inappropriate to the extent IPIC intends to make submissions on the issue of the proper approach to statutory interpretation. Additionally, the court was not satisfied that IPIC submissions were sufficiently distinct from those advanced by the applicant. The court was satisfied that the applicant would also raise the private and public interest issues submitted by IPIC.
Furthermore, the court found that the issues raised appeared relatively straightforward. The court was not convinced that the involvement of IPIC was necessary or desirable. The court said that IPIC's involvement may potentially complicate what otherwise appears to be a routine judicial review where the issue is the reasonableness of the commissioner's discretionary decision.
Ultimately, the court was not satisfied that IPIC's intervention was in the interests of justice and denied the request to intervene.