Date: 20030130
Docket: A-177-02
Neutral citation: 2003 FCA 59
CORAM: STRAYER J.A.
SEXTON J.A.
PELLETIER J.A.
BETWEEN:
APOTEX INC.
Appellant
- and -
BRISTOL-MYERS SQUIBB COMPANY and
BRISTOL-MYERS SQUIBB CANADA INC.
Respondents
Heard at Toronto, Ontario, on Thursday, January 30, 2003.
Judgment delivered from the Bench at Toronto, Ontario, on Thursday, January 30, 2003.
REASONS FOR JUDGMENT OF THE COURT BY: PELLETIER J.A.
Date: 20030130
Docket: A-177-02
Neutral citation: 2003 FCA 59
CORAM: STRAYER J.A.
SEXTON J.A.
PELLETIER J.A.
BETWEEN:
APOTEX INC.
Appellant
- and -
BRISTOL-MYERS SQUIBB COMPANY and
BRISTOL-MYERS SQUIBB CANADA INC.
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario
on Thursday, January 30, 2003.)
PELLETIER J.A.
[1] This is an appeal of an order in which a restriction is placed upon the officers of a party who will have access to documents containing confidential financial information. The problem, from the point of view of the appellant, is that its directing mind, Dr. Sherman, is excluded from the group of individuals who will be given access to the documents.
[2] Given that a protective order is already in place, the test to be met for the issuance for such an order must be taken to have been met. It is also to be noted that whether this appeal fails or succeeds, there will be no change in the public's access to the court record. Consequently, the principles applicable to the resolution of this appeal are not those dealing with the public interest in open justice as set out in 2002 SCC 41">Sierra Club of Canada v. Canada (Minister of Finance) 2002 SCC 41, [2002] F.C.J. No. 42.
[3] The fact that disclosure will be made to selected officers of the appellant means that the issue is not whether Apotex, as a party, will have access to the documents. The real question is whether excluding Dr. Sherman from the group of persons who are given access means that Apotex' ability to conduct its defence is impaired.
[4] It is not contested that Dr. Sherman is the directing mind of Apotex. But that fact is relevant to two aspects of this issue. The first is Apotex' ability to defend itself. Tthe second is that Dr. Sherman is the person who is in the best position to make inappropriate use of the confidential information.
[5] In these circumstances, the decision to include or exclude Dr. Sherman from the group of persons who will be given access to the confidential documents is a matter of weighing the advantages and disadvantages of inclusion and exclusion. This is the essence of a discretionary order.
[6] Insofar as the test for interfering with a prothonotary's discretionary order, it is difficult to conceive of the inclusion or exclusion of Dr. Sherman in the access group as a vital question. Even if he is excluded, Dr. Sherman will continue to be involved in the litigation, though not as intimately as he would with respect to the issue of damages. This is not a vital issue, as that phrase is used in Canada v. Aqua-Gem Investments Ltd. [1993] 2 F.C. 425, so as to call for the exercise a reviewing judge's discretion in the place of the prothonotary's. Nor are we persuaded that the Prothonotary made an error in principle.
[7] In the circumstances, we can see no error in Lemieux J.'s refusal to interfere with the prothonotary's exercise of her discretion.
[8] The appeal will be dismissed with costs.
"J.D. Denis Pelletier"
J.A.
FEDERAL COURT OF CANADA
APPEAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: A-177-02
STYLE OF CAUSE: APOTEX INC. v. BRISTOL-MYERS SQUIBB
COMPANY and BRISTOL-MYERS SQUIBB CANADA INC.
DATE OF HEARING: JANUARY 30, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
OF THE COURT BY: STRAYER, SEXTON and PELLETIER JJ.A.
RENDERED FROM THE
BENCH BY: PELLETIER J.A.
APPEARANCES BY:
Mr. Nando De Luca FOR THE APPELLANT
Mr. Anthony Creber FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Goodmans LLP
Toronto, Ontario FOR THE APPELLANT
Gowling Lafleur Henderson LLP
Ottawa, Ontario FOR THE RESPONDENTS
Email this Content