[1] This appeal from the decision of Prothonotary Tabib dated February 5th, 2004, concerns a finding made with respect to the Plaintiff's access to three documents for which privilege is claimed by the Defendant. An essential feature of the dispute is that the Defendant waived privilege to seven other documents, but not the three in question. The Plaintiff's position on the appeal is that, in fairness, the three contested documents should be released as they are part of a continuing sequence of uniform decision making.
[2] It is agreed that the test to be met respecting the release of the three documents is as follows:
I believe that the principle underlying the rule of practice exemplified byBurnell v. British Transport Commission is that, where a party is deploying in court material which would otherwise be privileged, the opposite party and the court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood. In my view, the same principle can be seen at work inGeorge Doland Ltd. v. Blackburn Robson Coates & Co. in a rather different context.
(See Nea Karteria Maritime Co. Ltd. v. Atlantic and Great Lakes Steamship Corp. (11 December 1978) reported in the Commercial Law Reports (see [1981] Com. L.R. 138 at p. 43)
[3] Applying the test in her decision, Prothonotary Tabib found as follows:
Waiver of privilege with respect to some of the previous communications between the same persons, does not, in the circumstances of this case, constitute waiver of the privilege asserted in regard of the documents at issue: The Defendant is not relying on the previous communications as a basis for its defence; I am not satisfied that the documents over which privilege has been waived [the seven] are linked with the documents over which privilege has been asserted [the three]; the Plaintiff has not shown any element of unfairness whatsoever in giving effect to the privilege. (Decision, p. 2)
(Emphasis added)
[4] Prothonotary Tabib did not see the three contested documents but made her decision on the sequence of the dates with respect to all ten documents. By consent, Counsel for both parties and I have reviewed the three documents in question on a de novo confidential basis, and oral argument has been made respecting the contents. Having done so, I find I agree with the conclusion reached by Prothonotary Tabib.
[5] For clarity, and with respect for the confidential nature of the documents for which privileges is claimed, I can only say that I accept the following argument advanced by the Defendant on the appeal:
21. The Court can infer that the privileged documents relate directly to the decision and reasons for decision of the Minister not to issue a notice of compliance to Apotex. Through counsel, the Minister advised Apotex, on June 27th, 1997, of his reasons for not issuing a notice of compliance for Apo-domperidone. The three privileged documents, which consist of e-mails and letters exchanged between Health Canada officials and their legal counsel, were produced in the period directly preceding the Minister's decision, that is, between May 23rd and June 3rd, 1997. It is likely that the exchange deals directly with the Minister's reasons for decision.
Plaintiff's Motion Record, Tab 16
22. The disclosed documents, however, do not relate directly to the Minister's decision not to issue a notice of compliance. They pertain to different topics:
a) Documents nos. 19, 20, 21, 22, 23, dated between November 13th to 15th, 1996, represent one distinct chain of communications between Health Canada and their legal advisors, on the issue of whether and how to respond to a letter from Janssen Pharmaceutical, dated November 13th, 1996.
Plaintiff's Motion Record, Tabs 5, 6, 7, 8.
b) Document no. 24 is a fax from legal counsel to Health Canada officials, dated January 7th, 1997, attaching, among other things, the recently received copy of Apotex's Originating Notice of Motion, in which Apotex sought to obtain a mandamus order compelling the Minister to issue a notice of compliance for Apo-domperidone.
Plaintiff's Motion Record, Tab 9
c) Document no. 32 is a fax from Health Canada officials to legal counsel, dated May 16th, 1997, providing general information on the Apotex's new drug submission for Apo-domperidone, its notices of allegation and the status of the notice of compliance.
Plaintiff's Motion Record, Tab 10
d) Document no. 37 is a fax from legal counsel to Health Canada officials, dated February 24, 1998, attaching a copy of the recent decision of Mr. Justice Muldoon, dated February 20, 1998, dismissing Apotex's mandamus application on grounds of mootness.
Plaintiff's Motion Record, Tab 11
23. The subject matters of the disclosed documents are not so closely related to the subject matter of the undisclosed documents as to justify waiving the privileged attaching to the undisclosed documents.
24. Furthermore, maintaining the privilege over the undisclosed documents does not mislead the Court or Apotex, in any way, as to the merits of the case.
(Defendant's Written Representations, pp. 6-8)
ORDER
Accordingly, I dismissed the appeal. Costs of the appeal are to be in the cause.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-1687-01
STYLE OF CAUSE: APOTEX INC.
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
DATE OF HEARING: JUNE 22, 2004
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: JUNE 24, 2004
APPEARANCES BY:
Ms. Jenna Seguin FOR THE PLAINTIFF
Mr. Alex Kaufman
FOR THE DEFENDANT
SOLICITORS OF RECORD:
Goodmans LLP
Toronto, Ontario
FOR THE PLAINTIFF
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario
FOR THE DEFENDANT
FEDERAL COURT
Date: 20040624
Docket: T-1687-01
BETWEEN:
APOTEX INC.
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
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