Date: 20090901
Docket: T-775-09
Citation: 2009 FC 866
Toronto, Ontario, September 1, 2009
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
JANSSEN-ORTHO
INC. and ALZA CORPORATION
Applicants
and
APOTEX
and THE MINISTER OF HEALTH
Respondents
REASONS FOR ORDER AND ORDER
[1]
This is an
appeal from two Orders of the Prothonotary dated August 11, 2009 which set the
same schedule for this application and another application involving the same
parties. The two schedules are exactly the same and provide that the hearings
of the two applications will take place concurrently;
[2]
Upon the
Court finding that the applicants had sought a scheduling order with respect to
application T-775-09. The Respondent Apotex responded by proposing that the
schedule in this application coincide with the schedule set in Court Docket
T-1983-08. The Prothonotary’s Order under appeal did schedule the steps in this
application to coincide with the existing schedule for the steps in Court
Docket T-1983-08 and did order that both applications be heard concurrently;
[3]
And upon
the applicants submitting that the Order under appeal is clearly wrong because
there was no formal motion for consolidation of the two proceedings and the
applicants did not have an adequate opportunity to oppose consolidation.
However, the applicants did not request an adjournment before the Prothonotary
to have an adequate opportunity to oppose. Rather, the applicants state in the
notice of motion for this appeal that the “Prothonotary invited the parties to
make submissions” and “the position of the applicants … was asserted at the
hearing”;
[4]
And
upon the Court finding that the scheduling order does effectively consolidate
the two applications in that the two applications will be heard together;
[5]
And
upon the Court being satisfied that in order to consolidate two proceedings the separate
causes of action need not have completely common questions of law or fact, but
only some commonality [Fibreco Pulp Inc. v. Star Shipping A/S (1998),
145 F.T.R. 125 (Proth. Hargrave), paras. 42 and 46, aff’d (1998), 156 F.T.R.
127 (T.D.), aff’d (2000), 257 N.R. 291 (Fed. C.A.)].
[6]
And
upon the court being satisfied that consolidation of proceedings may be ordered
upon the Court’s own initiative [John E. Canning Ltd. v. Tripap Inc., [1999] F.C.J. No. 715,
(T.D.) (QL), Lemieux J. at paras. 26-27, Montana Band v. Canada (1999),
182 F.T.R. 161, MacKay J. at paras. 31-36].
[7]
And
upon the Court being satisfied that the Prothonotary has the same power and
discretion under Rule 385(1) of the Federal Courts Rules to set this
application to coincide with Court Docket T-1983-08 and to officially
consolidate the
two proceedings under Rule 105 of the Federal Courts Rules as a case
management judge [Remo Imports Ltd. V. Jaguar Cars Lts. (2003), 24
C.P.R. (4th) 341, Gibson J. at para. 13, aff’d (2003), 24 C.P.R. (4th) 348
(Fed. C.A.); Montana Band v. Canada (November 8, 2000), Doc.
A-700-99 to A-703-99, 2000 CarswellNat 2646 (fed. C.A.)].
[8]
And upon
the Court being satisfied that the Prothonotary’s discretionary interlocutory decision
is entitled to a high degree of deference and should not be interfered with
unless the issues in dispute are clearly material to the just disposition of
the litigation and the ruling is fundamentally flawed [Lundbeck Canada Inc.
v. Canada (Minister of Health), [2008] F.C.J. No.1275 (Fed. C.A.) (QL), Evans J.A. at para. 5].
[9]
And upon the
Court being satisfied that the applicants have not discharged their “heavy
burden” to show that the Prothonatary’s order is clearly wrong on either the
material before the Prothonotary or the Court;
[10]
And upon
the Court advising the parties that the applicants can always ask the
Prothonotary to reconsider the scheduling order that the two applications be
heard concurrently on the ground that the applicants now state that they were
taken by surprise at the hearing on July 27, 2009, and have relevant evidence
and reasons to present the Prothonotary as to why the two applications should
not be heard concurrently. The Prothonotary has the discretion to review the
scheduling order at any time for good and substantial reasons;
ORDER
THIS COURT
ORDERS AND ADJUDGES that:
This appeal be dismissed with costs to Apotex in the
cause.
“Michael A. Kelen”
Email this Content