Docket: T-2792-96
Citation: 2003 FC 1483
Ottawa, Ontario, this 17th day of December, 2003
Present: The Honourable Justice James Russell
BETWEEN:
MERCK & CO., INC., MERCK FROSST CANADA & CO.,
SYNGENTA LIMITED, ASTRAZENECA UK LIMITED
and ASTRAZENECA CANADA INC.
Plaintiffs
(Defendants by Counterclaim)
and
APOTEX INC.
Defendant
(Plaintiff by Counterclaim)
REASONS FOR ORDER AND ORDER
THE MOTION
[1] This motion is brought by the Defendant, Apotex Inc. ("Apotex"), for an order that the Court set aside the order of Prothonotary Morneau dated May 5, 2003, ("Decision") in so far as the Decision dismissed Apotex's application to compel Dr. Matthew Wyvratt, the representative of the Plaintiff, Merck & Co. ("Merck") and a named inventor in Canadian Letters Patent No. 1,275,350 (the "350 Patent"), to re-attend for discovery to answer certain questions ("Questions") that were refused or taken under advisement at Dr. Wyvratt's re-attendance on January 22, 23 and 24, 2003, together with all relevant questions arising from the responses provided.
[2] The Questions that Apotex wants answered are listed in Amended Schedule "A" of its motion.
[3] The motion also requests that the Decision be set aside in so far as Prothonotary Morneau ordered that questions and undertakings should be answered in writing, rather than by way of re-attendance.
[4] The motion further requests that this Court, in effect, exercise its de novo authority to compel Dr. Wyvratt to re-attend for discovery and answer the Questions, together with all relevant questions arising from the responses provided.
[5] Notwithstanding that, in its motion, Apotex requested that Dr. Wyvratt re-attend to answer the Questions and any relevant questions arising from the responses provided, in para. 24 of its written Representations, Apotex acknowledged that "although Apotex initially sought the re-attendance of Dr. Wyvratt, at the hearing of the motion, Apotex agreed to accept written answers to the listed questions."
[6] At the hearing of this matter held in Toronto on October 15, 2003, counsel for Apotex indicated that, in order to remove any concerns about "never-ending proceedings," Apotex did not require Dr. Wyvratt's re-attendance and merely wanted to receive written answers to the Questions.
PERTINENT LEGISLATION
[7] The pertinent sections of the Federal Court Rules, 1998, SOR/98-106 are as follows:
| 3. These Rules shall be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits.
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240. A person being examined for discovery shall answer, to the best of the person's knowledge, information and belief, any question that
(a) is relevant to any unadmitted allegation of fact in a pleading filed by the party being examined or by the examining party; or
(b) concerns the name or address of any person, other than an expert witness, who might reasonably be expected to have knowledge relating to a matter in question in the action.
...
242. (1) A person may object to a question asked in an examination for discovery on the ground that
(a) the answer is privileged;
(b) the question is not relevant to any unadmitted allegation of fact in a pleading filed by the party being examined or by the examining party;
(c) the question is unreasonable or unnecessary; or
(d) it would be unduly onerous to require the person to make the inquiries referred to in rule 241.242(2) A person other than a person examined under rule 238 may not object to a question asked in an examination for discovery on the ground that
(a) the answer would be evidence or hearsay;
(b) the question constitutes cross-examination.
...
385. (1) A case management judge or a prothonotary assigned under paragraph 383(c) shall deal with all matters that arise prior to the trial or hearing of a specially managed proceeding and may
(a) give any directions that are necessary for the just, most expeditious and least expensive determination of the proceeding on its merits;
(b) notwithstanding any period provided for in these Rules, fix the period for completion of subsequent steps in the proceeding;
(c) fix and conduct any dispute resolution or pre-trial conferences that he or she considers necessary; and
(d) subject to subsection 50(1), hear and determine all motions arising prior to the assignment of a hearing date.
385(2) A case management judge or a prothonotary assigned under paragraph 383(c) may, at any time, order that a status review be held in accordance with rule 382.
385(3) A case management judge or a prothonotary assigned under paragraph 383(c) may order that a proceeding cease to be conducted as a specially managed proceeding, in which case the periods set out in these Rules for taking any subsequent steps will apply.
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3. Les présentes règles sont interprétées et appliquées de façon à permettre d'apporter une solution au litige qui soit juste et la plus expéditive et économique possible.
...
240. La personne soumise à un interrogatoire préalable répond, au mieux de sa connaissance et de sa croyance, à toute question qui :
a) soit se rapporte à un fait allégué et non admis dans un acte de procédure déposé par la partie soumise à l'interrogatoire préalable ou par la partie qui interroge;
b) soit concerne le nom ou l'adresse d'une personne, autre qu'un témoin expert, dont il est raisonnable de croire qu'elle a une connaissance d'une question en litige dans l'action.
...
242. (1) Une personne peut soulever une objection au sujet de toute question posée lors d'un interrogatoire préalable au motif que, selon le cas :
a) la réponse est protégée par un privilège de non-divulgation;
b) la question ne se rapporte pas à un fait allégué et non admis dans un acte de procédure déposé par la partie soumise à l'interrogatoire ou par la partie qui l'interroge;
c) la question est déraisonnable ou inutile;
d) il serait trop onéreux de se renseigner auprès d'une personne visée à la règle 241.
242(2) À l'exception d'une personne interrogée aux termes de la règle 238, nul ne peut s'opposer à une question posée lors d'un interrogatoire préalable au motif que, selon le cas :
a) la réponse constituerait un élément de preuve ou du ouï-dire;
b) la question constitue un contre-interrogatoire.
...
385. (1) Le juge responsable de la gestion de l'instance ou le protonotaire visé à l'alinéa 383c) tranche toutes les questions qui sont soulevées avant l'instruction de l'instance à gestion spéciale et peut :
a) donner toute directive nécessaire pour permettre d'apporter une solution au litige qui soit juste et la plus expéditive et économique possible;
b) sans égard aux délais prévus par les présentes règles, fixer les délais applicables aux mesures à entreprendre subséquemment dans l'instance;
c) organiser et tenir les conférences de règlement des litiges et les conférences préparatoires à l'instruction qu'il estime nécessaires;
d) sous réserve du paragraphe 50(1), entendre les requêtes présentées avant que la date d'instruction soit fixée et statuer sur celles-ci.
385(2) Le juge responsable de la gestion de l'instance ou le protonotaire visé à l'alinéa 383c) peut ordonner la tenue d'un examen de l'état de l'instance en conformité avec la règle 382.
385(3) Le juge responsable de la gestion de l'instance ou le protonotaire visé à l'alinéa 383c) peut ordonner qu'une instance ne soit plus considérée comme une instance à gestion spéciale, auquel cas les délais prévus aux présentes règles s'appliquent aux mesures prises subséquemment.
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ISSUES RAISED
[8] There are two basic issues raised by this motion:
a) What is the appropriate standard of review to apply to the Decision and, in the event that Prothonotary Morneau has erred in law or misapprehended the facts or failed to appreciate the pleadings, should this Court determine the matter de novo and make the decision that Prothonotary Morneau should have made?
b) Did Prothonotary Morneau, in the Decision, make fundamental errors of law and principle, or misapprehend the facts or fail to appreciate the pleadings?
ANALYSIS
STANDARD OF REVIEW
[9] When a motions judge hears an appeal from a decision of a prothonotary, assuming that no questions vital to the final issue of the case are involved, the reviewing judge can only exercise his or her own discretion in place of the prothonotary's 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 ..." (Canada v. Aqua-Gem Investments Ltd. (C.A.), [1993] 2 F.C. 425 F.C.A. at para. 95).
[10] In this appeal the Court is being asked to determine whether Prothonotary Morneau erred in his Decision by applying a wrong principle of law to the facts before him, and whether he misapprehended the facts or failed to appreciate the pleadings.
RELEVANCE AND CASE MANAGEMENT ISSUES
[11] The gravamen of Apotex's complaint is that, in making the Decision, Prothonotary Morneau misunderstood and misapplied the principle of "relevance", and failed to appreciate its role in the discovery process, particularly as it relates to the exercise of his case management powers.
[12] In the Decision, Prothonotary Morneau is clearly of the view that, in addressing the issues before him, "the traditional relevance of questions raised [has] to be juxtaposed with the practical reality of moving the case forward expeditiously and in accordance with both Rule 3 of theFederal Court Rules, 1998, and the Court's case management powers."
[13] Apotex says that this is wrong. Relevance, in so far as it applies to the Questions and documentation adduced during the discovery process and their admissibility at trial is a question of law.
[14] Pursuant to Rule 240, a person being examined for discovery is required to answer any question that is relevant to any unadmitted allegation of fact disclosed in the pleadings, as well as any question concerning the identity of any person, other than an expert witness, who may reasonably be expected to have knowledge of matters in issue.
[15] Apotex points out that the jurisprudence of this Court indicates that, in determining whether a question should be answered, a general and flexible standard of relevance must be applied. If a question may fairly lead the examining party to a train of inquiry that may directly or indirectly advance its case, or damage that of its adversary, it is a proper question for discovery and must be answered.
[16] In this regard, Apotex relies upon dicta in Monit International Inc. v. Canada, [1999] F.C.J. No. 1932 at para. 10 (F.C.T.D.); Industry Entertainment (JDR) Inc. v. Melenny Productions Inc., [1998] F.C.J. No. 864 at para. 1 (Fed. Proth.), and other case law.
[17] A similar relevance rule applies to documentation. Every party is obliged to list in its Affidavit of Documents and produce all non-privileged and relevant documents within its power, possession and control. A document is relevant if the party intends to rely upon it, or if it tends to adversely affect the party's case or support the other party's case. A document is also relevant and producible if it may fairly lead to a train or inquiry that could produce the same result.
[18] With these rules and cases in mind, Apotex argues that the issue of which documents should be produced, or which questions should be answered, is not a matter for a prothonotary's or a court's case management discretion; it is merely a matter of relevance.
[19] Apotex says that Prothonotary Morneau erred when he concluded that relevance was a matter of discretion and that, in deciding which questions should be answered and which documents should be produced, he balanced relevance against "the practical reality of moving the case forward expeditiously and in accordance with both Rule 3 of the Federal Court Rules, 1998, and the Court's case management powers."
[20] Since this matter was argued before me on October 15, 2003, significant clarification of the primary issues raised in this appeal has been provided by the Federal Court of Appeal in Apotex Inc. v. Merck & Co., Inc., Merck Frosst Canada & Co. Syngenta Limited, AstraZeneca UK Limited and AstraZeneca Canada Inc., [2003] F.C.J. No. 1725, 2003 F.C.A. 438 (Q.L.). In correspondence to the Court, counsel for both sides have drawn my attention to that decision and its relevance for the issues before me in this appeal.
[21] The following paragraphs from the Court of Appeal decision are particularly helpful and apt:
12. In appeals from the decisions of motions judges reviewing the decisions of prothonotaries, this Court is very reluctant to interfere. This is particularly true in respect of decisions of case management judges and prothonotaries where it has been said that this Court will interfere "only in the clearest case of a misuse of judicial discretion" (Sawridge Band v. Canada [2002] 2 F.C. 346 at 354).
13. In my view, however, in the present case there has been an error of principle which has fettered the exercise of discretion by the prothonotary, and his decision has been confirmed by the motions judge. 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 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.
14. I would also observe that limiting the scope of questions for the sake of speed may in some cases be counterproductive. One of the purposes of discovery is to simplify proof at trial and another is to narrow the issues which remain in dispute. Both of these purposes are fully consistent with "expedition", so it is wrong to assume that completeness of discovery will always be an obstruction to the "most expeditious ... termination of the proceeding on its merit ...".
15. In the present case I am not satisfied that the learned prothonotary directed his mind to specific questions of relevance. The relevance issues were not raised clearly before him in paragraph 19 of the respondents' submissions, on which he relied and which he adopted as his rationale. Further, his reasons suggest that his ultimate conclusion was based on what he understood to be the imperatives of case management and not on any test of relevance. In particular, he did not specifically conclude that the questions should not be answered because, although relevant, they would for example be abusive because calling for an opinion or because of their scope.
16. For the same reasons, the motions judge should have identified the error in principle on which the prothonotary's decision was based and should have exercised the discretion himself.
17. Therefore the appeal must be allowed and the matter sent back to the prothonotary.
[22] In light of the Court of Appeal decision, there is little point in discussing the competing arguments and authorities raised by the parties in this appeal prior to that decision. The concerns here are identical and their disposition should reflect the guidance that has now been provided by the Court of Appeal.
[23] It is now clear, on the facts of this appeal, that Prothonotary Morneau did apply a wrong principle of law in reaching the Decision at issue in this case. It is also clear that he did not address his mind to the specific questions of relevance.
[24] That being the case, the only question for consideration by this Court is whether the Court should exercise its de novo powers to determine the matters that were before Prothonotary Morneau when he made the Decision.
[25] Apotex is of the view that there is no need to remit the matter back to Prothonotary Morneau because the Court has heard full argument addressed to the relevance and propriety of the Questions and documentation involved in the appeal, which were distinct from those at issue before the Court of Appeal in the case referred to above.
[26] Merck feels that, in the event the Court allows this appeal, the matter should be referred back to Prothonotary Morneau for re-determination. The rationale is that, as Case Management Prothonotary, Prothonotary Morneau is uniquely situated to determine whether questions refused by Merck should be answered in light of the guidance that has now come from the Court of Appeal, and any inconsistency in dealing with these issues should be avoided.
[27] My conclusions on this issue are that the position taken by Prothonotary Morneau in the Decision under appeal was highly dependent upon the previous decision he had made (that decision was appealed to Noël J. of this Court and finally came before the Court of Appeal). It is clear that, in making both decisions, he had in mind the need for consistency in handling the Case Management Process and the interconnectedness of the matters before him. As Case Management Prothonotary, he is significantly more familiar than is this Court with the broader procedural and substantive issues that need to be addressed before this matter can come to trial.
[28] This suggests to me that Prothonotary Morneau should be given the opportunity to re-assess his position on the Questions and documentation referred to in this appeal in light of the direction that has now come from the Federal Court of Appeal. This should include the issue of whether Dr. Wyvratt should re-attend to answer the Questions and any relevant questions arising from the responses provided.
ORDER
THIS COURT ORDERS that
1. The Motion is granted.
2. The matter is referred back to Prothonotary Morneau for re-determination in light of the Reasons for Judgment of the Court of Appeal dated November 20, 2003 (A-112-03) and for re-determination of the issue as to whether Dr. Wyvratt should re-attend for discovery to answer the Questions and any responses to the questions, unless Apotex should indicate that it will be satisfied with written answers.
3. The costs of this motion and before the prothonotary are awarded to Apotex without regard to the final disposition of the case.
"James Russell"
______________________________
J.F.C.
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