Date: 20100430
Citation: 2010 FC
481
Ottawa, Ontario,
April 30, 2010
PRESENT: Madam Prothonotary Mireille Tabib
Docket:
T-644-09
BETWEEN:
APOTEX INC.
Plaintiff
- and -
SANOFI-AVENTIS
Defendant
Docket:
T-933-09
BETWEEN:
SANOFI-AVENTIS AND
BRISTOL-MYERS SQUIBB SANOFI
PHARMACEUTICALS HOLDINGS PARTNERSHIP
Plaintiffs
- and -
APOTEX INC.
APOTEX PHARMACHEM INC. AND
SIGNA SA de CV
Defendants
REASONS FOR ORDER AND ORDER
[1]
In
accordance with the Notice to the Parties and the Profession dated May 1, 2009,
relating to the streamlining of complex litigation, dates have been set aside,
beginning on April 18, 2011, for a five-week trial of the consolidated actions
herein. In order to ensure that those dates are met and that the trial proceeds
within the time allowed, the Court has, at the occasion of earlier case
management conferences, raised the issue of whether a date should be fixed
after which service of supplementary affidavits of documents would require the
consent of the opposing party or leave of the Court. The parties were formally
required, by Order dated February 18, 2010, to be prepared to discuss that
issue at a case management telephone conference held on March 5, 2010.
[2]
Counsel
for Sanofi agreed to this measure with alacrity. Apotex, however, argued that
it was unnecessary as any issue as to the admissibility of evidence based on
late disclosure could and should be determined at trial.
[3]
I have, in
earlier reasons issued in this matter (Apotex Inc. v. Sanofi Aventis, 2010
FC 77), discussed the need for the parties to comply not only with the letter
of their obligations under the Federal Courts Rules to correct without
delay inaccuracies or deficiencies in their affidavits of documents pursuant to
Rule 226, but with their spirit and purpose, by reviewing on a continuing basis
the completeness and accuracy of their disclosures.
“[16] Finally, it should also be
remembered that while the Rules provide that a party may correct any inaccuracy
or deficiency in an affidavit of documents by serving a supplementary affidavit
of documents, this must be done without delay. This is all the more important
in actions subject to the streamlining initiative, as the tight schedules
afford little "extra" time to re-open discoveries should new
documents be disclosed. Where, on an informal request or a motion for
production of further documents, a party's attention is drawn to a particular
type or source of documents or to a particular factual issue which it had not
considered for relevance, the party's duty to review its disclosure in order to
correct any inaccuracy or deficiency in its affidavit of documents is
triggered, and should result in such supplementary affidavit of documents as
the review may require, without delay, and without the need for a specific
order.”
[4]
The same
reasoning equally applies to a party’s continuing duty to correct or complete
answers given to discovery questions, pursuant to Rule 245.
[5]
The Rules
provide that documents or information that have not been disclosed in
affidavits of documents or have been withheld in answer to discovery questions
cannot be adduced at trial unless certain conditions are met or leave of the
Court is obtained. Rules 232(1) and 248 of the Federal Courts Rules
provide:
|
“232. (1)
Unless the Court orders otherwise or discovery of documents has been waived
by the parties, no document shall be used in evidence unless it has been
(a) disclosed on a party's
affidavit of documents as a document for which no privilege has been claimed;
(b) produced for inspection
by a party, or a person examined on behalf of one of the parties, on or
subsequent to examinations for discovery; or
(c) produced by a witness
who is not, in the opinion of the Court, under control of the party.”
“248. Where a party examined for discovery, or a person examined for
discovery on behalf of a party, has refused, on the ground of privilege or
for any other reason, to answer a proper question and has not subsequently answered
the question, the party may not introduce the information sought by the
question at trial without leave of the Court.”
|
« 232. (1) À moins que la Cour n'en ordonne
autrement ou que les parties n'aient renoncé à leur droit d'obtenir
communication des documents, un document ne peut être invoqué en preuve que
dans l'un des cas suivant:
· a) il est mentionné dans l'affidavit de documents de la partie et, selon
celui-ci, aucun privilège de non-divulgation n'est revendiqué;
· b) il a été produit par l'une des parties ou par une personne interrogée
pour le compte de celle-ci pour examen, pendant ou après les interrogatoires
préalables;
· c) il a été produit par un témoin qui, de l'avis de la Cour, n'est pas
sous le contrôle de la partie. »
« 248. La partie soumise à un interrogatoire préalable, ou
la personne interrogée pour son compte, qui a refusé de répondre à une
question légitime au motif que les renseignements demandés sont protégés par
un privilège de non-divulgation ou pour tout autre motif, et qui n'y a pas
répondu par la suite, ne peut donner ces renseignements à l'instruction à
moins d'obtenir l'autorisation de la Cour. »
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[6]
Clearly,
these provisions aim to avoid a party being prejudiced by late disclosure of
documents or information and to prohibit “trial by ambush”. Yet a party could
just as effectively ambush its opponent by serving a supplementary affidavit of
document or supplemental answers to discovery a few days, weeks or even months
before the trial, yet without sufficient time for the opposing party to
adequately prepare to respond to the new documents or information.
[7]
To leave
the receiving party with the choice of making a motion to rule on the
admissibility of evidence (which if brought pursuant to Rule 220(1)(b)) is an
unwieldy two-stage process), or to deal with the matter as an objection to
evidence at trial is simply inefficient. Further, to the extent justice between
the parties requires that the evidence be allowed to be adduced at trial
subject to further discoveries or additional export reports, it is clear that
leaving the determination to the Trial Judge leads straight to an adjournment
of the trial, whereas early determination of these issues by the case
management Judge could potentially provide a timely remedy and avoid an
adjournment.
[8]
There is,
in my view, a need for a procedural mechanism by which potential disputes as to
the parties’ compliance can be determined or remedied before trial on an
adequate record and in a timely manner. I am therefore satisfied that a date
should be set after which supplementary affidavits of documents or production
of documents or information in answer to discoveries would require either
consent of the opposing party or leave of the Court in order to be effective
for the purposes of Rules 232 and 248. This will ensure that, if the parties do
not meet their obligations to review their disclosure on an ongoing basis,
there is a date by which a comprehensive review should be made, after which
parties will have to provide justification for late disclosure and any
prejudice caused to the other party can be addressed or remedied if possible.
It will further promote the early identification and disposition of issues of
admissibility related to late disclosure, freeing up trial and time and
possibly avoiding adjournments.
[9]
In the
circumstances, that date should roughly coincide with the date on which the
last of the rebuttal expert reports are to be served and filed. Indeed, by
then, documents on which litigation privilege may have been claimed but which
have been relied upon by experts expected to be called at trial should be
subject to waiver and accordingly moved from Schedule II of the Affidavit of
Document to its Schedule I. Also, the parties will then have as complete an
understanding as they are likely to get before the actual start of the trial as
to the issues in dispute and their opponent’s position thereon. Combined with
the theory of the case and the trial strategy which they ought to have been
refining and developing throughout the discovery stages, the parties should
then be in a position to know with great precision on what documents and
information they might wish to rely at trial and to fully appreciate the
consequence of any incomplete and inaccurate disclosures they might have made.
As such, it is expected that there should be few or no new disclosures after
that date. Imposing on the parties a mechanism by which they can justify why or
on what conditions disclosures made after that date should be admissible at
trial is neither unfair nor overly burdensome.
ORDER
THIS COURT ORDERS that:
1.
No
supplementary affidavit of documents served after December 15, 2010, and no
corrected or completed information in answer to a discovery question provided
after January 15, 2010 shall be deemed effective for the purposes of Rules
232(1) or 248 unless:
(a)
The other
party has consented; or
(b)
Leave has
been granted on motion made, without delay, before the case management Judge.
2.
The trial
of this matter shall begin at 9:30 a.m. on April 18, 2011, for a duration of 25
days, in French and in English, at a place to be determined either on motion or
at the pre-trial conference.
“Mireille Tabib”
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