Date: 19981218
Docket: T-2389-94
BETWEEN:
PFIZER CANADA INC. and
PFIZER CORPORATION
Applicants
- and -
APOTEX INC. and
THE MINISTER OF NATIONAL HEALTH AND WELFARE
Respondents
REASONS FOR ORDER
HUGESSEN J.
[1] This is an extremely difficult and troubling case. Mr. Ivor Hughes, a senior and respected member of the Intellectual Property Bar, has been found to be guilty of contempt of Court for having disclosed confidential material contrary to the terms of a protective order.
[2] I accept absolutely that the breach of the order was not made with any intent to breach or disregard the order of the Court. Rather, what happened, in my view, is that Mr. Hughes committed or acted on an error of law in his interpretation of the order. I note, because I think it is very relevant for these purposes, that the error committed by Mr. Hughes, the error of law, was precisely the same error of law that was committed by the very experienced trial judge who initially heard the application for contempt and acquitted Mr. Hughes.
[3] I also accept unreservedly that Mr. Hughes is sincerely sorry for what has happened and that he has apologized to the Court both at the previous hearing and again at the hearing today before me. I accept the apology.
[4] In acquitting Mr. Hughes, the first trial judge said as follows:
| Furthermore, I am not convinced that the material filed by Mr. Hughes, in support of the patent application, can accurately be described as confidential. |
[5] Commenting on that passage, of the trial judge"s reasons, Mr. Justice Pratte, speaking for the Court of Appeal, after finding that the trial judge had committed the error of law to which I have just adverted, said the following:
| If the information disclosed by Mr. Hughes, was, as found by the judge of first instance, confidential to Mr. Hughes" client rather than to the appellant, that fact would tend to show that Mr. Hughes acted in good faith and that the breach of the injunction was merely technical; it should therefore be taken into account in fixing the penalty to be imposed on Mr. Hughes. |
[6] I have, myself, reviewed the evidence which was adduced before the first trial judge and I am indeed satisfied that the material which was disclosed by Mr. Hughes was not confidential to anyone but his own client. In accordance with the guidance of the Court of Appeal, accordingly, I find that the breach was indeed purely technical and was committed in good faith.
[7] It remains, however, that Mr. Hughes was and is an officer of this Court and, as such, he owes a higher duty to respect and enforce the orders of this Court, and that, as well, is a fact that I must take into account.
[8] Before turning to the question of the proper penalty to be imposed, I think it is important to say a word on the matter of costs because the costs, which may be imposed on Mr. Hughes, are a very relevant part of the total penalty which he will have to pay. It is, of course, customary, in matters of this sort, to require that persons found guilty of contempt pay costs on a solicitor and client basis to the party who has brought the matter to the Court"s attention. The policy underlying that jurisprudence is clear: a party who assists the Court in the enforcement of its orders and in the enforcement of respect for its orders, should not, as a rule, be put out of pocket for having been put to that trouble.
[9] In the present case, however, I am advised by counsel that the solicitor and client costs, which have been incurred by the applicant in this application both at the first trial and in the Court of Appeal and, again at this hearing today, run to the order of $160,000.00. As I understand counsel, that amount excludes a further amount of some $20,000.00 which was incurred in an unsuccessful attempt to appeal the order of the Court of Appeal to the Supreme Court of Canada.
[10] An order for the payment of costs in the amount of $160,000.00 would be a swingeing punishment indeed and I have no intention of imposing such a penalty.
[11] Given the foregoing considerations, I have decided that an appropriate order would be to grant Mr. Hughes a discharge and to require him to pay costs to the applicant in the amount of $15,000.00.
"James K. Hugessen"
Judge