Date: 20080702
Docket: T-2078-00
Citation: 2008
FC 824
Ottawa, Ontario, July 2, 2008
PRESENT: The Honourable Mr. Justice Hugessen
BETWEEN:
BRISTOL-MYERS SQUIBB COMPANY
and
BRISTOL-MYERS SQUIBB CANADA INC.
Plaintiffs
and
APOTEX
INC.
Defendant
REASONS FOR ORDER AND ORDER
[1]
Notwithstanding Mr. Lederman’s able submissions
I am simply not persuaded that either of the points which he takes issue with,
in the Prothonotary’s pre-trial Order, demonstrate an error of law and since
the Order was clearly discretionary he must show that the Prothonotary
committed an error of law. Indeed I think the cases go further, and that to
succeed he must show that she was clearly wrong in giving the Order.
[2]
The two aspects of the Order with which Mr. Lederman takes issue are first
the Prothonotary’s decision that the venue of the trial which was thought by
all the parties at that time, to be of a projected duration of almost 100 days,
should depend upon the availability of Court resources. What the Prothonotary
said was that the Chief Justice’s office would fix the trial in either Montreal or Toronto depending upon availability. In my view that was clearly not an
error. In fact, I think she was clearly right.
[3]
For a trial of that projected length, I think
that the interests of justice do dictate that the trial should be held as soon
as possible. As for the other matters that go into the so-called balance of
convenience test with respect to venue, there is very little difference between
Montreal and Toronto. The two
cities are in constant connection by hourly airplane flights, daily train and
an excellent road system and the Court has available, if necessary,
videoconference facilities. Availability of where a trial should be held, where
the trial is of such exceptional length such as this one, is simply not a matter
that can be seriously debated.
[4]
The other issue which was dealt with by the
Prothonotary had to do with the production of expert reports.
[5]
In my view, there is not as Mr. Lederman urges, an absolute right to
produce rebuttal reports. What the Prothonotary’s Order foresaw was that each
party would produce reports dealing with those issues (in the plaintiffs’ case
infringement, and in the defendant cross-plaintiffs’ case, invalidity) upon
which the party had the burden of proof. Then each party was given the right
to produce expert reports to the contrary in the plaintiffs’ case, of course
with respect to the points that had been taken by the defendant's experts, and
the defendant’s case with respect to the points that had been taken by the
plaintiffs’ experts. Then the Prothonotary went on to permit the production of
rebuttal reports subject to leave of the Court.
[6]
Even if the right to produce rebuttal reports is a right and it is not,
in my view, an absolute right, to subject it to leave of the Court was a simple
prudent measure to ensure that at this stage, because we are talking about
reports which would be produced a mere 30 days before the opening of the trial,
it was a prudent move to make the production of such reports subject to the
Court’s leave so as to make sure that there was no abuse by either counsel who
in the defendant’s counsels’ own words are "crafty".
[7]
The motion, in my view, cannot succeed and must fail.
[8]
Having heard counsel on the issue of costs it is my view that the defendant
should pay costs to the plaintiffs which costs are hereby fixed and assessed in
the total amount of $3,500 all in payable forthwith and in any event of the
cause.
ORDER
THIS COURT ORDERS that
The motion is dismissed; defendant shall pay plaintiffs' costs which
are hereby fixed and assessed in the sum of $3,500 all in forthwith and in any
event of the cause.
“James
K. Hugessen”
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