Date: 19981120
Docket: A-408-98
CORAM: STONE J.A.
McDONALD J.A.
SEXTON J.A.
BETWEEN:
| GLAXO GROUP LIMITED and GLAXO WELLCOME INC. |
Appellants
(Plaintiffs)
- and -
| NOVOPHARM LIMITED |
Respondent
(Defendant)
REASON FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, Friday, November 20, 1998)
STONE J.A.
[1] This appeal is from an order of the Trial Division of June 24, 1998 refusing to compel answers to all of the questions which are set forth in Schedule A to the appellants' Notice of Motion except Questions 506, 507 and 5566.
[2] The questions in dispute are grouped in two discrete categories: "Acquiescence and Laches" and "Anticipation". The three questions that were ordered to be answered fall into the first category.
[3] It is apparent from the pleadings that acquiescence and laches as well as anticipation are among the defences relied upon by the respondent. For a defence of acquiescence to be made out a defendant must be able to satisfy several elements or requisites among which are a mistaken belief as to that party's legal rights and the doing of some act on the faith of the mistaken belief: Canadian Superior Oil Ltd. v. Padden-Hughes Development Co. Ltd., [1970] S.C.R. 932, at page 938.
[4] In our view, the learned Motions Judge neglected these principles in the case at bar. The respondent's knowledge of its rights and of actions taken in asserting those alleged rights are surely relevant to this issue at the discovery stage. We are all of the view that the questions in the "Anticipation" category are relevant on the discovery and ought to be answered as well. It is well accepted that a fair amount of latitude is allowed on discovery provided a question is relevant to issues raised by the pleadings; whether such question is relevant and admissible at trial is a matter for the Trial Judge. See e.g. McKeen & Wilson Ltd. v. Gulf of Georgia Towing Co. Ltd., [1965] 2 Ex. C.R. 480, at page 482, and the cases there cited.
[5] It should remain open, of course, for the respondent to assert a claim of privilege in answering a particular question.
[6] The appeal will be allowed with costs and the amended order of the Trial Division of June 24, 1998 will be varied by striking out all of the first paragraph except the first and last sentence thereof and substituting the following:
| A representative of the respondent shall re-attend on discovery within six weeks of the date of this order at the expense of the respondent at a time and place to be fixed by the appellants to answer all of the questions as set out in Schedule "A" to the appellants' Notice of Motion. The requirement to answer the said questions shall be subject to any claim of privilege that the respondent may assert in answering a particular question. |
"A.J. STONE"
J.A.