Date:
20080409
Docket: A-485-07
Citation: 2008 FCA 131
CORAM: EVANS J.A.
PELLETIER
J.A.
RYER J.A.
Court file No.
(T-3197-90)
BETWEEN:
APOTEX INC.
Appellant
(Plaintiff)
and
THE WELLCOME FOUNDATION LIMITED
Respondent
(Defendant)
and
NOVOPHARM LTD.
Respondent
(Plaintiff)
Court File No:
(T-2624-91)
AND
BETWEEN:
INTERPHARM INC. and
APOTEX INC. and ALLEN BARRY SHECHTMAN
Appellants
(Defendants)
and
THE WELLCOME FOUNDATION LIMITED and GLAXO
WELLCOME
INC.
Respondents
(Plaintiffs)
Heard at Ottawa,
Ontario, on April 9, 2008.
Judgment delivered from the Bench at Ottawa, Ontario, on April 9, 2008.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS
J.A.
Date:
20080409
Docket:
A-485-07
Citation:
2008 FCA 131
CORAM: EVANS
J.A.
PELLETIER
J.A.
RYER
J.A.
Court file No.
(T-3197-90)
BETWEEN:
APOTEX INC.
Appellant
(Plaintiff)
and
THE WELLCOME FOUNDATION LIMITED
Respondent
(Defendant)
and
NOVOPHARM LTD.
Respondent
(Plaintiff)
Court File No:
(T-2624-91)
AND
BETWEEN:
INTERPHARM INC. and
APOTEX INC. and ALLEN BARRY SHECHTMAN
Appellants
(Defendants)
and
THE WELLCOME FOUNDATION LIMITED and GLAXO
WELLCOME
INC.
Respondents
(Plaintiffs)
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Ottawa, Ontario, on April 9, 2008)
EVANS J.A.
[1]
This
is an appeal by Apotex Inc. from a decision of Justice Hugessen of the Federal
Court, dated October 17, 2007, upholding an order of Prothonotary Lafrenière, dated
October 1, 2007, refusing Apotex’ motion to require the corporate
representative of the respondents, The Wellcome Foundation and Glaxo Wellcome
Inc. (“GSK”) to answer a question on discovery. The question asked for the
production of GSK’s month-end bank accounts for seventeen years, commencing January
1, 1990.
[2]
The
motion arises from a reference to assess the damages payable by Apotex to GSK
as a result of Apotex’ infringement of a patent held by GSK. One of the heads
of damages claimed by GSK is for the loss of opportunity to reinvest in the
ordinary and usual course of business the profits which, but for Apotex’ infringement,
it would have earned by exploiting the patent. Apotex alleges in response to this
claim that GSK had ample assets (cash and equity) available to it for this purpose;
instead, it retained large cash balances in its bank accounts which earned a
much lower return than that now claimed by GSK for loss of opportunity.
[3]
Despite
the apparently mandatory nature of rule 240 of the Federal Courts Rules,
1998,
ordering questions to be answered on discovery
involves an exercise of discretion. A party is not entitled to discovery merely
by showing that the answer might be relevant to prove material facts. The generality
and breadth of a question, the extent of the burden that would be imposed by
requiring an answer, the degree of relevance of the requested information, and
the availability of other potential evidence of the facts in question, are
among the factors to be considered in the exercise of discretion. See Merck
& Co. v. Apotex Inc., 2003 FCA 438, (2003), 28 C.P.R. (4th)
491 at paragraphs 10 and 13.
[4]
As
the case management prothonotary of this complex and protracted litigation,
including an extensive discovery involving thousands of questions, Prothonotary
Lafrenière was best placed to determine whether, in all the circumstances, it
was appropriate to require the question in dispute to be answered. Accordingly,
despite the absence of reasons (and we note here that the Prothonotary was
asked to rule on 225 questions in this and related motions), the Prothonotary’s
decision is entitled to considerable deference: Merck & Co. v. Apotex
Inc., supra, at paragraph 12; Apotex Inc. v. Merck & Co.
2007 FC 250 at paragraphs 13 and 15, and should be set aside on appeal only if
it was based on an erroneous principle of law or was plainly wrong on the
facts. Justice Hugessen regarded the broad and general nature of the question
as a sufficient basis for upholding the exercise of the Prothonotary’s
discretion.
[5]
We
are not satisfied that, on the basis of the extensive record before him, the
Prothonotary committed any error in the exercise of his discretion not to
require an answer to the question in dispute which the Motions Judge ought to
have intervened to correct.
[6]
For
these reasons, the appeal will be dismissed with costs.
“John
M. Evans”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-485-07
STYLE OF CAUSE: APOTEX INC.
Appellant
(Plaintiff)
and
THE WELLCOME FOUNDATION LIMITED
Respondent
(Defendant)
and
NOVOPHARM LTD.
Respondent
(Plaintiff)
Court File No:
(T-2624-91)
AND
BETWEEN:
INTERPHARM INC. and
APOTEX INC. and ALLEN BARRY SHECHTMAN
Appellants
(Defendants)
and
THE WELLCOME FOUNDATION LIMITED and GLAXO
WELLCOME
INC.
Respondents
(Plaintiffs)
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: April 9, 2008
REASONS FOR JUDGMENT OF THE COURT BY: Evans J.A.
DELIVERED FROM THE BENCH BY: Evans J.A.
APPEARANCES:
|
Mr. Miles Hastie
|
FOR THE APPELLANT/
APPLICANT
|
|
Ms. Josée
Gravel
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Goodmans LLP Toronto Ontario
|
FOR THE
APPELLANT/
APPLICANT
|
|
Ogilvy Renault
Toronto, Ontario
|
FOR THE
RESPONDENT
|
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