Date: 20061214
Docket: T-341-02
Citation: 2006
FC 1501
Ottawa, Ontario, December 14, 2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
LILLY ICOS LLC and
ELI LILLY CANADA INC.
Plaintiffs
and
PFIZER IRELAND PHARMACEUTICALS
Defendant
REASONS FOR ORDER AND ORDER
(Re: Examination of Ricks and Wilcox)
I. INTRODUCTION
[1]
This is a
third appeal (Motion #3) of the learned Prothonotary’s Order of March 6, 2006
but which in this case requires the Plaintiffs to answer certain questions
which they had refused to do. The Plaintiffs also sought to adduce new evidence
for the purposes of this appeal consisting of answers provided by the Defendant
subsequent to the examination of Gary Wilcox and David Ricks.
II. BACKGROUND
[2]
The facts
have been described in the Reasons regarding Dr. Ellis’ examination (Motion #1).
The only difference is that in this instance the Plaintiffs are refusing to
answer questions rather than compelling answers as in the case of Dr. Ellis’
examination.
III. ANALYSIS
[3]
The
overarching legal principles have likewise been set forth in those same Reasons
in respect of Motion #1.
A. Issue 1: Questions
regarding PDE Inhibitors
[4]
The
learned Prothonotary ordered these questions answered as they related to the
issue of “obviousness”. That issue is raised by the Plaintiffs as described in
the earlier decision.
[5]
This
Court, in the earlier decision, ordered similar questions regarding PDE
inhibitors to be answered by the Defendant, in part because the Plaintiffs had
had to answer similar questions and because obviousness was clearly an issue in
this litigation.
[6]
The
Plaintiffs have not shown that the learned Prothonotary erred in principle or
misapprehended the facts.
B. Issue 2: Questions related to the
Plaintiffs’ Research Programs on Erectile Dysfunction and Non-PDE Research
[7]
The
learned Prothonotary ordered the Plaintiffs to answer questions on their
research into other substances but refused to compel the Defendant to answer a
similar question on the grounds that it was too remote.
[8]
I would
have thought that the issue of research in this case was relevant to the issue,
at least, of obviousness. However, the Plaintiffs did not appeal the
Prothonotary’s decision not to compel the Defendant to answer questions
regarding their research.
[9]
If the
Prothonotary’s Order regarding the Defendant’s research into other substances
is correct and need not be answered, I cannot understand how the opposite
conclusion could be reached in respect of the Plaintiffs. Either other research
programs related to erectile dysfunction are relevant and proximate or they are
not.
[10]
I must
conclude that amid the mass of questions, answers, objections, refusals and
related debates, this issue was inadvertently missed. Therefore, it would
appear that the learned Prothonotary misapprehended the facts and his decision
on this issue must be overturned. The Plaintiffs ought not to be compelled to
answer these questions.
C. Issue 3: Questions
regarding the Development of Tadalfil
[11]
The Plaintiffs
advised that they had withdrawn their appeal on this issue.
D. Issue 4: Ordering
Questions related to Lilly Production 49
[12]
The
Plaintiffs produced Lilly Production 49 and now seek to curtail the scope of
questioning on that document. The proposition, generally a valid one, is that
not everything in a document produced is in itself relevant to the issues in
the specific litigation. However, a document may contain relevant information
which may be explored on discovery.
[13]
Since the
test of relevance in respect of discovery is fairly broad - “may fairly lead to
an inquiry”, it has not been established that in respect of the questions
related to Lilly Production 49, the learned Prothonotary erred in such a manner
that this Court should substitute its opinion for that of the Prothonotary.
E. Issue 5: Laboratoire
Glaxo Wellcome S.A. Question
[14]
The appeal
on this issue was withdrawn at the hearing before this Court.
IV. CONCLUSION
[15]
I have
allowed in the new evidence requested for the very limited purpose for it was
said to be used – to set context. It was evidence which could not have been
obtained at an earlier date.
[16]
This is
the last of three appeals of a Prothonotary appeal in which the subject matter
was originally canvassed over several days. These Prothonotary decisions were
divided into three appeals and represented as two-hour appeals each. As such,
they were set down for regular motions day hearing. This is a practice which
should be actively discouraged. Matters of this complexity should be set down
for a special sitting where appropriate hearing and writing time can be
allocated.
[17]
For the
reasons given, this appeal is allowed in part. Costs shall be in the cause.
ORDER
IT IS ORDERED THAT the appeal is allowed in part,
the Plaintiffs are not required to answer questions related to Items Nos.
180-184, 189-192 and 207. Costs shall be in the cause.
“Michael
L. Phelan”
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