Date: 20070403
Docket: T-117-05
Citation: 2007
FC 360
Toronto, Ontario, April 3, 2007
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
PHARMASCIENCE
INC.
Plaintiff
and
GLAXOSMITHKLINE INC., GLAXOSMITHKLINE
PLC, SMITHKLINE BEECHAM CORPORATION, THE WELLCOME FOUNDATION LIMITED and
DOE CO. and all other entities unknown to
the Plaintiff which
are part of the GLAXOSMITHKLINE group of
companies
Defendants
REASONS FOR ORDER AND ORDER
[1]
This is an
appeal from a decision of Prothonotary Milczynski dated August 29, 2006 wherein
while granting an Order as to confidentiality of certain documents and
information, she declined to include in that order a more restrictive category
such that certain documents and information would be provided on a “counsel’s
eyes only” basis. In so declining she stated:
I am not, however, satisfied that the
Defendants have met the burden of establishing, on the evidence filed, that
there are the unusual circumstances that would warrant the extraordinary order
of disclosure of relevant documents and information on a “counsel’s eyes only”
basis. Interference with the normal solicitor-client (sic) should only be
considered in the clearest of cases. An order preventing counsel from showing
relevant evidence to his or her client to obtain instructions should only be
granted where the burden has been met and not simply on the basis of a concern
for the risk of or potential for misuse. There need be more than speculation,
(see: Merck & Co. v. Apotex Inc. (2004), 32 C.P.R. (4th) 203
(F.C.); and Merck & Co. v. Brantford Chemicals Inc. (2005), 43 C.P.R. 233
(F.C.)). In this case, there is insufficient evidence for me to conclude that
such a restriction should be placed on the Plaintiff’s ability to prepare its
case and properly instruct counsel.
[2]
The law is
clear as to an appeal from a decision of a Prothonotary such as this decision,
a Prothonotary’s determination as to a matter that is not vital to an issue in
a proceeding should not be reversed unless the Prothonotary’s order is clearly
wrong as being based on a wrong principle or misapprehension of the facts (Apotex
Inc. v. Canada (2005), 41 C.P.R. (4th) 97 (F.C.A.) paras. 11-13.
[3]
Here the
appellants GlaxoSmithKline et al argue that the Prothonotary relied on a wrong principle
namely that she failed to consider the reasons for decision of Justice MacKay
in Apotex Inc. v. Wellcome Foundation Ltd. (1993), 51 CPR (3d)
305 (FC) which appellants argue lay down criteria for granting confidentiality
orders. Second, counsel for appellants argues that the Prothonotary overlooked
relevant uncontradicted evidence that certain categories of information
relating to breakdown of group costs required a more restrictive category of
areas described as “Highly Confidential Information – Counsel’s Eyes Only:.
[4]
On an
appeal as such this, the reasons for decision given by a Prothonotary are not to
be read microscopically (Apotex v Canada 2005 F.C. 1401 at para. 26). A
Prothonotary cannot be expected, nor can a judge, to set out each and every argument
and authority raised by counsel in its written materials or in oral arguments,
and weigh and consider each in written reasons. Where, as here, a Prothonotary
has given a decision that is clearly not dispositive of or affecting an
ultimate issue in the case, reasons of the type given by the Prothonotary here
are sufficient.
[5]
In the
case of Apotex Inc. v. Wellcome Foundation Ltd., supra referred
to by appellants’ counsel provided reasons why, in that case, a confidentiality
order including a “counsel’s eyes: provision was granted. That case did not purport
to set out a series of criteria to be examined and followed in every instance.
In Merck & Co. v. Brantford Chemicals Inc. (2005), 43 CPR (4th) 233
(FC), it was pointed out that our practice provides for an implied rule as to
confidentially with respect to documents and information disclosed on
discovery, that a restrictive order providing for confidentiality could be
sought in approproriate circumstances, and that a “highly confidential”
category would be ordered only in unusual circumstances.
[6]
As to
weighing of the evidence, in Apotex Inc., v. Bristol-Myers Squibb Co.
(2003), 23 CPR (4th) 465, the Federal Court of Appeal noted that a
decision of a Prothonotary as to whether to grant a “highly confidential”
category in a confidentiality order is not a vital issue so as to call for the
exercise of a reviewing Judge’s discretion in place of that of a Prothonotary.
In the present case, the evidence before the Prothonotary, including whether or
not a category of breakdown of group costs ought to be “highly” confidential
rather than confidential, was part of the record and was weighed by her. It is
not the function of this Court to reweigh the evidence and exercise discretion anew.
[7]
Prothonotaries
should be allowed to perform their duties without the parties seeking appeals
beyond the limits expressed in cases such as Apotex supra. The
functioning of this Court depends on orderly disposition of matters by
Prothonotaries without appeals being taken which have no proper basis.
[8]
The appeal
is dismissed with costs, fixed in the amount of $1,500 payable to the Plaintiff
in any event of the cause, but not forthwith.
ORDER
For the Reasons above;
THIS COURT ORDERS that:
1.
The appeal
is dismissed.
2.
The
Plaintiff is entitled to its costs in the sum of $1,500 payable in any event of
the cause but not forthwith.
“Roger
T. Hughes”
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