Date: 20040415
Docket: T-3197-90
Citation: 2004 FC 574
Ottawa, Ontario, April 15, 2004
Present: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
APOTEX INC. and NOVOPHARM LTD.
Plaintiffs
and
THE WELLCOME FOUNDATION LIMITED
Defendant
Docket: T-2624-91
AND BETWEEN:
THE WELLCOME FOUNDATION LIMITED and
GLAXO WELLCOME INC.
Plaintiffs
and
INTERPHARM INC. and APOTEX INC.
and ALLEN BARRY SHECHTMAN
Defendants
Docket: T-2983-93
AND BETWEEN:
THE WELLCOME FOUNDATION LIMITED
and GLAXO WELLCOME INC.
Plaintiffs
and
NOVOPHARM LTD.
Defendant
REASONS FOR ORDER AND ORDER
[1] This is a motion brought forth by the Defendant, Apotex Inc. ("Apotex"), seeking to strike paragraphs 2(c)(i) and 2(c)(ii) of Prothonotary Lafrenière's order dated February 11, 2004 ("the order").
[2] The request for the order was made at a case management conference on February 3, 2004, convened by Prothonotary Lafrenière to set a schedule for the hearing of a reference for the determination of damages in these proceedings.
[3] After having agreed to a schedule for the delivery of statements of issues and affidavits of documents, the plaintiffs, The Wellcome Foundation Limited and Glaxo Wellcome Inc. ("Glaxo"), sought an order compelling Apotex and the other responding parties to include certain specified categories of documents in their affidavits of documents.
[4] Nothwithstanding that Apotex strongly objected to the relief sought, Prothonotary Lafrenière granted Glaxo's request and ordered inter alia, that:
(c) The parties shall each deliver a list of relevant documents on or before Friday, June 4, 2004. Documents may be produced in electronic format
(i) It is expressly ordered that the Defendants shall list and produce any and all documents that were prepared or maintained in the usual and ordinary course of business evidencing the acquisition, manufacture, use, sale, or other disposal of any product containing zidovudine, in Canada or elsewhere, between 1990 (or the date of first manufacture, if earlier) and the present.
(ii) Further, it is expressly ordered that Apotex Inc. shall produce any documents belonging to Interpharm Inc. evidencing the acquisition manufacture, use, sale, or other disposal of any product containing zidovudine, in Canada or elsewhere, between 1990 (or the date of first manufacture, if earlier) and the present.
ANALYSIS
[5] It is well established that on appeal from a decision of a prothonotary, the reviewing judge can only exercise his or her own discretion in place of the prothonotary if he or she concludes that the exercise of discretion by the prothonotary "was based upon a wrong principle or upon a misapprehension of facts". Where a prothonotary has "fallen into an error of law" a reviewing judge is not required to show any deference to the decision of the prothonotary (Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.)).
[6] Apotex submits that the order was made prematurely. First, the statement of issues had not yet been filed, thus the issues to be argued at the reference were not yet defined. Second, the parties' affidavits of documents are due only on June 4, 2004. Pursuant to the Federal Court Rules, 1998, SOR/98-106 (the "Rules") the task of choosing documents for production is that of the producing party. I agree with counsel for Apotex that this part of the order is premature.
[7] Rule 223 of the Rules clearly states that it is the party serving the affidavit of documents who will determine the content thereof. Rule 224 confers obligations on both the deponent and his solicitor. The deponent is required, before making the affidavit of documents, to become informed by making reasonable inquiries into any matter in question in the proceeding. The solicitor is required to explain to the deponent of an affidavit of documents "the necessity of making full disclosure under Rule 223 and the possible consequences of failing to do so".
[8] In Montana Band v. Canada, [2001] F.C.J. No. 991 (F.C.T.D.), Hugessen J. confirms that the Rules are very clear in requiring that the initial judgment of relevance of documents for production be made by the producing party:
I cannot pass without comment the entirely unmerited suggestion by the Crown that the plaintiffs and their counsel cannot be relied upon to examine the documents in the plaintiffs' possession and make a judgment of relevance. I suppose, counsel are entitled to their opinion but it is wrong. The rule is very clear. It requires that the initial judgment of relevance of documents for production purposes be made by the party with the assistance of counsel and it requires that the affidavit of a party be supported by a certificate of counsel that the party has been properly instructed as to the obligation which it has under the rules. (My emphasis).
[9] Thus, considering that the affidavit of documents has not been delivered yet, it was clearly premature for Prothonotary Lafrenière to order what categories of documents Apotex is required to list and produce therein.
[10] Moreover, it is presumed that an affidavit of documents includes a complete list of the relevant documents and it is only once the party has submitted its affidavit of documents that the receiving party can seek to demonstrate that it is incomplete. At that point, the burden falls upon the receiving party to prove that the document they are requesting exists, that it is in the possession and control of the producing party and that it is relevant to the issues at stake (Montana Band, supra; Poitras v. Sawridge Band, [2001] F.C.J. No. 714 (F.C.T.D.)).
[11] Therefore, in granting Glaxo's request to produce documents at this time, Prothonotary Lafrenière disregarded the appropriate procedure to be followed in such instances.
[12] Apotex also submits that Prothonotary Lafrenière erred in law in granting Glaxo's request in the absence of any formal motion made by Glaxo. Again, I agree.
[13] Pursuant to Rule 47(1) of the Rules the Court is permitted to exercise its discretionary powers under the Rules of its own initiative or on motion. However, pursuant to Rule 47(2) of the Rules, where a rule provides that "the powers of the Court are to be exercised on motion, they may be exercised only on the bringing of a motion". In that regard, Rules 225, 227 and 229 specifically stipulate that where a Court is satisfied that an affidavit of documents is inaccurate or deficient, it may order, on motion, that an accurate affidavit of documents be submitted.
[14] Prothonotary Lafrenière found that he had jurisdiction to make such an order pursuant to powers attributed to the referee by Rules 156 and 157 of the Rules. Respectfully, I disagree. As a case management prothonotary, Mr. Lafrenière decides matters preliminary to the actual reference. When the actual reference will be heard, the proper procedural steps will have already been completed i.e. , the statement of issues and the affidavits of documents will have been filed and questions of accuracy or completeness of the affidavit resolved.
[15] It follows that since the prothonotary did not have discretion on this matter, Glaxo's arguments pertaining to the necessity for elbow room to resolve interlocutory matters and the high level of deference owed to the prothonotary acting as case management judge are not applicable.
[16] Further, I find that Apotex's rights were breached by this order. In Merck & Co. v. Apotex Inc. (2003), 28 C.P.R. (4th) 491 (F.C.A.), Strayer J. wrote at paragraph 13:
[...] I do not understand Rule 385 to authorize a case management judge or prothonotary, in giving directions that are necessary for the "just, most expeditious and least expensive determination of the proceeding on its merits" to enable them to deny a party the legal right to have questions answered on examination for discovery which are relevant to the issues in the pleadings. That right is not merely "theoretical" (as the prothonotary put it) but is clearly spelled out in [page498] Rule 240 and I do not take the general words of rule 385(1)(a) or of Rule 3 to be sufficient to override that specific right. I would also observe that the word "just" which appears in both these rules relied on by the respondents and the decision-makers below confirms that justice is not to be subordinated to expedition. A person who is a party to a civil action is entitled to ask any question on discovery that is relevant to the issue: that is a matter of justice to him, subject of course to the discretionary power of the prothonotary or a judge to disallow the question where it is abusive for one of the reasons mentioned above. No such findings have been made in this case. (My emphasis).
[17] While I find commendable the efforts of Prothonotary Lafrenière to act expeditiously to ensure the orderly conduct and completion of the reference, a party's right to make representations and present evidence cannot be trumped by the will to govern a proceeding in the simplest and most expeditious manner. Expediency cannot override substantive rights. In my opinion, Rule 385 does not have the effect of attributing to the case management judge or prothonotary jurisdiction to grant an order which could only be granted on motion, thereby breaching Apotex's right to received written submissions and prepare an adequate response to the motion.
[18] Further, as observed by the Federal Court of Appeal in Merck, supra, such an exercise for the sake of speed may be counterproductive. To order the production of documents before a statement of issues and an affidavit of documents be filed, without having benefited from a streamline process by the parties, may result on the production of irrelevant documents.
[19] For these reasons, the motion is granted, with costs.
ORDER
THIS COURT ORDERS that the motion is granted, with costs.
"Danièle Tremblay-Lamer"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-3197-90
STYLE OF CAUSE: APOTEX INC. and NOVOPHARM LTD.
and
THE WELLCOME FOUNDATION LTD.
DOCKET: T-2624-91
STYLE OF CAUSE: THE WELLCOME FOUNDATION LIMITED and GLAXO WELLCOME INC.
and
INTERPHARM INC. and APOTEX INC. and ALLEN BARRY SHECHTMAN
DOCKET: T-2983-93
STYLE OF CAUSE: THE WELLCOME FOUNDATION LIMITED and GLAXO WELLCOME INC.
and
NOVOPHARM LTD.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: April 13, 2004
REASONS FOR ORDER
AND ORDER OF THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
APPEARANCES:
Mr. Andrew Brodkin FOR PLAINTIFFS
Mr. Jason Markwell FOR DEFENDANTS
SOLICITORS OF RECORD:
GOODMANS LLP
TORONTO, ONTARIO FOR PLAINTIFFS
OGILVY RENAULT
TORONTO, ONTARIO FOR DEFENDANTS