Date: 19980513
Docket: T-1713-95
BETWEEN:
PFIZER CANADA INC. and
PFIZER CORPORATION
Applicants
-and-
NU-PHARM INC. and
THE MINISTER OF NATIONAL HEALTH AND WELFARE
Respondents
REASONS FOR ORDER
McGILLIS, J.:
[1] Despite the able argument of counsel for the applicant, I have not been persuaded that Giles A.S.P. committed any error in determining that "...the Order issued by Mr. Justice Richard releasing documents from the confidentiality order of Mr. Justice Rouleau did not apply to those documents which were the subject of the order of Mr. Justice McKeown to produce the sealed Nu-Pharm NDS for the use of the Motions Judge on the motion to determine its compellability."
[2] My review of the evidence in the record confirms that, on July 27, 1993, Rouleau J. issued an Order to protect the confidentiality of documents designated as confidential by any of the parties in Court file T-1352-93 ("Protective Order"). On August 10, 1993, Pfizer Canada Inc. and Pfizer Corporation ("Pfizer") brought a motion to compel the Minister of National Health and Welfare ("Minister") to produce Nu-Pharm Inc.'s ("Nu-Pharm") New Drug Submission ("NDS"). On August 10, 1993, McKeown J. adjourned that motion, and issued an Order requiring the Minister to produce the NDS in a sealed envelope not available to the public or to Pfizer "...in order to assist the Judge to determine relevance..." ("Production Order"). The Minister complied with the Production Order, and produced the eight volume NDS in sealed envelopes. On December 24, 1993, McKeown J. dismissed Pfizer's motion to compel production of the NDS for use as evidence in the judicial review proceedings in Court file T-1352-93. As a result, although the NDS was in the possession of the Court and sealed under the terms of the Production Order, it is clear that it did not form part of the evidence for the purposes of the judicial review application in Court file T-1352-93.
[3] At the outset of the application for judicial review in Court file T-1352-93, counsel for the parties and Richard J. engaged in a discussion concerning the question of the confidentiality of documents. I am satisfied, on the basis of the evidence in the transcript, that the discussion in question related solely and exclusively to the documents relevant to that application for judicial review, namely the documents subject to the Protective Order issued by Rouleau J. The question of the confidentiality of the NDS, which was not evidence in the application for judicial review, was not considered by Richard J. Indeed, Richard J. did not even make an Order releasing the documents to be used in the application for judicial review from the terms of the Protective Order, since "...counsel themselves have removed the claim of confidentiality...". In the circumstances, he directed the Registry to remove the confidentiality designation from the documents and to make them public. He adjourned court for five minutes to permit "...the Registry to remove the seals from all the confidential information, which no longer is,...".
[4] In my opinion, the transcript of the proceedings before Richard J., when considered in the context of the procedural history of Court file T-1352-93, confirms unequivocally that the terms of the Production Order sealing the NDS were not affected by the direction made in open court to remove the confidentiality designation from the documents relevant to the judicial review proceedings. The Registry therefore committed an unfortunate error in unsealing the NDS, which was sealed under the terms of the Production Order, and in subsequently releasing it to Pfizer for use in the present file.
[5] In his Reasons for Order and Order dated April 22, 1998, Giles A.S.P. required the Registry to return to the Minister the remaining copies of the NDS in the possession of the Court. He also instructed the Registry to remove from Pfizer's record the portions of the NDS which were included in it.
[6] I have not been persuaded that Giles A.S.P. committed any error in ordering the NDS, including those portions contained in Pfizer's record, to be returned to the Minister. Indeed, I am of the opinion that Giles A.S.P. took a common sense and practical approach in an attempt to minimize the harm caused by the Registry's error.
[7] In his Reasons for Order and Order, Giles A.S.P. also purported to strike the NDS from Pfizer's application record on the basis that those documents had not been exhibited to an affidavit. With the greatest of respect, I am of the opinion that the apparent failure of Pfizer to include an affidavit pertaining to the NDS is irrelevant in the circumstances of the present case, in that Giles A.S.P. had already determined that the portions of the NDS in the application record should be returned to the Minister in order to minimize the harm caused by the Registry's error in removing the documents from the sealed envelopes. In the circumstances, it was unnecessary for him to purport to strike those documents for another reason.
[8] Although Pfizer claims to have suffered prejudice as a result of the removal of the portions of the NDS from its application record, I note that Pfizer has never brought a motion seeking to compel the Minister to produce the NDS for use in the present proceedings. I am of the opinion that, in the context of the present appeal, it is unnecessary for me to determine the relevance of the NDS or the prejudice caused to Pfizer by its removal from the application record. In the event that counsel for Pfizer wishes to seek the production of the NDS for use in the present application for judicial review, he may take such procedural steps as he deems necessary.
[9] Following the hearing on the appeal, counsel for Pfizer wrote to the Registry on May 12, 1998 and indicated that information in an affidavit sworn by Jayne Baik on May 8, 1998 "...may be germane to the issues..." argued before me. He requested "...an opportunity to seek directions with respect to this evidence and supplemental argument ...". In response to that letter, counsel for Nu-Pharm wrote, on May 13, 1998, that the Baik affidavit should not be considered by me for various reasons, including that it "...contains no facts that are relevant to the determination of the matters under reserve."
[10] I have carefully reviewed the letters of counsel and the Baik affidavit. In my opinion, the Baik affidavit contains no information of any relevance to the appeal. In the circumstances, I will not permit counsel to adduce it in evidence on the appeal or to make any supplementary submissions.
[11] The appeal is dismissed with costs.
"D. McGillis"
Judge
Toronto, Ontario
May 13, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1713-95
| STYLE OF CAUSE: PFIZER CANADA INC. and |
PFIZER CORPORATION
- and -
| NU-PHARM INC. and |
| THE MINISTER OF NATIONAL HEALTH AND WELFARE |
DATE OF HEARING: MAY 11, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: McGILLIS, J.
DATED: MAY 13, 1998
APPEARANCES:
Mr. Charles E. Beall
For the Applicants
Mr. Richard Naiberg
For the Respondent
(Nu-Pharm Inc.)
- 2 -
SOLICITORS OF RECORD:
Gowling, Straty & Henderson
2600-160 Elgin Street
Ottawa, Ontario
K1P 1C3
For the Applicants
Goodman, Phillips & Vineberg
250 Yonge Street, Suite 2400
Toronto, Ontario
M5B M
For the Respondent
(Nu-Pharm Inc.)
George Thomson
Deputy Attorney General
of Canada
For the Respondent
(Minister of National Health
and Welfare)
FEDERAL COURT OF CANADA
Date: 19980513
Docket: T-1713-95
Between:
| PFIZER CANADA INC. and |
PFIZER CORPORATION
Applicants
- and -
| NU-PHARM INC. and |
| THE MINISTER OF NATIONAL HEALTH AND WELFARE |
Respondents
REASONS FOR ORDER