Date: 19980914
Docket: T-1170-98
BETWEEN:
ABBOTT LABORATORIES, LIMITED
and ABBOTT LABORATORIES
Plaintiffs
- and -
NOVOPHARM LIMITED
Defendant
REASONS FOR ORDER AND ORDER
BLAIS, J.:
[1] This motion is for an order:
| - Allowing an appeal from the Order of Giles A.S.P. delivered on August 31, 1998; |
| - Striking paragraphs 10, 11 and 12 of the amended statement of claim dated September 1, 1998; |
| - In the alternative, requiring the plaintiffs to provide the particulars of paragraphs 10, 11 and 12 of the amended statement of claim requested in schedule "A" to this notice of motion within 15 days of the date of this order; |
| - Unless the paragraphs of the amended statement of claim are struck and without leave to amend, extending the time for serving and filing a statement of defence until 20 days after the plaintiffs have delivered a further amended statement of claim (if leave is granted), or until 20 days after the plaintiffs have provided the further particulars to the defendant, or, if the motion is dismissed, until 20 days after the date of the order disposing of the motion herein. |
[2] Giles A.S.P. has rendered a decision ordering that the motion to strike be dismissed, and that the particulars of who has made the material mentioned in paragraph 11 shall be supplied, and that particulars of what has been done by whom shall be supplied for the purposes of paragraph 12 of the statement of claim, and that the time for filing a statement of defence be extended to the 21st day after the filing of particulars.
[3] As mentioned by the respondent's counsel, "for convenience of the parties and the Court", the particulars order to be provided were included in amended statement of claim (the Amended Claim) served on September 2, 1998.
[4] In regards to the appeal from the prothonotary's decision, I carefully read the decision made by the prothonotary on August 31, 1998. I also carefully listened to the two counsel and read the documents they have filed and the authorities they referred to.
[5] The prothonotary has carefully examined the motion, and the evidence in support of it and has decided that the three paragraphs should not be struck out and that "there is therefore an indication of the existence of a cause of action".
[6] He has also decided that paragraphs 11 and 12 should be particularised and that paragraph 10 was adequately particularised.
[7] The two parties have referred me to the decision of the Federal Court of Appeal, Her Majesty the Queen v. Aqua-Gem Investments Ltd. [1993] 2 C.F. 425. At page 463, the Honourable Judge McGuigan J.A. wrote:
| ...discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless: |
| (a) they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or |
| (b) they raise questions vital to the final issue of the case. |
| Where such discretionary orders are clearly wrong in that the prothonotary has fallen into error of law (a concept in which I include a discretion based upon a wrong principle or upon a misapprehension of the facts), or where they raise questions vital to the final issue of the case, a judge ought to exercise his own discretion de novo. |
[8] The Aqua-Gem decision at page 464 also referred to the Jala Godavari case:
| Jala Godavari should not, I think, be read as meaning that the prothonotary's discretion should never be respected, but rather that it is subject to an overriding discretion by a judge when the question involved is vital to the final issue of the case. [emphasis added] |
[9] I believe that the question raised in our case is not vital to the final issue of the case.
[10] It is clear that the judge has to follow the parameters set out by the jurisprudence because, in not doing so, all prothonotaries decisions would be appealed and a judge would always exercise his own discretion de novo. I don't think it is what the Aqua-Gem decision says. The two parties, for different reasons obviously, have not convinced me. I, therefore, find no manifest error of law such that would permit me to interfere with the prothonotary's exercise of discretion.
[11] IT IS HEREBY ORDERED THAT:
| 1) The motion to appeal the order of Giles A.S.P. delivered on August 31, 1998 be dismissed; |
| 2) The plaintiffs be allowed to file the amended statement of claim dated September 1, 1998 which contains the particulars that were asked by Giles A.S.P. decision of August 31, 1998; and |
| 3) The time for filing the statement of defence be extended to the 21st day from the date of this decision. |
[12] Costs in the cause.
Pierre Blais
Judge
OTTAWA, ONTARIO
October 14, 1998