Date: 20031120
Docket: A-112-03
(T-2792-96)
Citation: 2003 FCA 438
CORAM: STRAYER J.A.
SHARLOW J.A.
MALONE J.A.
BETWEEN:
APOTEX INC.
Appellant
(Defendant)
and
MERCK & CO. INC., MERCK FROSST CANADA & CO.
SYNGENTA LIMITED, ASTRAZENECA UK LIMITED
AND ASTRAZENECA CANADA INC.
Respondents
(Plaintiffs)
Heard at Toronto, Ontario, on Thursday, November 13, 2003
JUDGMENT delivered at Ottawa, Ontario, on Thursday, November 20, 2003
REASONS FOR JUDGMENT BY: STRAYER J.A.
CONCURRED IN BY: SHARLOW J.A.
MALONE J.A
Date: 20031120
Docket: A-112-03
(T-2792-96)
Citation: 2003 FCA 438
CORAM: STRAYER J.A.
SHARLOW J.A.
MALONE J.A.
BETWEEN:
APOTEX INC.
Appellant
(Defendant)
and
MERCK & CO., INC., MERCK FROSST CANADA & CO.
SYNGENTA LIMITED, ASTRAZENECA UK LIMITED
AND ASTRAZENECA CANADA INC.
Respondents
(Plaintiffs)
REASONS FOR JUDGMENT
STRAYER J.A.
Introduction
[1] This is an appeal from a decision of a motions judge of the Federal Court of February 13, 2003 which dismissed an appeal from a decision of a prothonotary of August 21, 2002. That decision dismissed the appellant's motion to compel answers on discovery to certain questions to which answers were refused during the examinations for discovery of the respondents. It involves the question of whether ordinary rules of discovery can be overridden in the interests of case-management.
Facts
[2] The respondents are plaintiffs in an action commenced in 1996 against the appellant alleging infringement by the appellant of the respondents' patent. The appellant has filed a statement of defence and counter-claim denying infringement and alleging invalidity of the patent on various grounds. Extensive examinations for discovery have been held. At the time the appellant brought its motion requiring further answers, some 800 questions and 133 undertakings were still in dispute. For purposes of the motion the outstanding questions were organized into 26 categories. Subsequently the parties agreed with respect to some of the questions and the prothonotary ordered answers to certain others. Otherwise he dismissed the motion by the appellant for an order compelling further answers.
[3] As the prothonotary saw it the issue before him was as follows:
The principal problem before the Court in this motion is whether the Court should take the approach recommended by Apotex and, essentially, allow any relevant question arising from the allegations not admitted in the proceedings, or specifically here the questions based on paragraph 19 of Apotex's defence and counterclaim ("the defence"), or whether the Court should regard this as an opportunity to limit the scope of the examination which Apotex is conducting so as to move the case at bar forward as quickly as possible, within the spirit of Rule 3 of the Federal Court Rules (1998) . . . . (Reasons for Order paragraph 6).
It appears that the learned prothonotary chose the latter approach. He relied heavily on the written submissions of the respondents, particularly paragraphs 18 and 19 of those submissions. Paragraph 18 listed nine categories of questions which the respondents thought it would be "appropriate" to answer. (There was no explanation on what criteria the respondents deemed it "appropriate" to answer). Paragraph 19 of the respondents's submissions listed ten kinds of questions which it characterized as "improper and irrelevant".
[4] Upon reading this list it is not apparent what criteria were used to determine that these were improper or irrelevant. One might guess that certain of them were considered simply irrelevant but some categories by their description were based on criteria for exclusion other than relevance such as answers requiring "expert evidence", those requiring interpretation of the patent (a role for the Court) and one category including questions which were "too broad, would require considerable time, effort and expense to answer . . .". Apart from this list, not being confined to objections based on pure irrelevancy, the respondents at the hearing maintained that three additional categories could be added to paragraph 19 including one category called "irrelevant questions". It must thus be assumed that the other categories of objections were not based on irrelevancy alone.
[5] The prothonotary, without making any determination as to relevancy himself, simply stated:
In the circumstances, I am prepared to approve and accordingly adopt this approach by Merck so as to limit the scope of the examination held by Apotex and move the case forward expeditiously, within the meaning of Rule 3. (Reasons for Order, paragraph 22).
It is not clear from this statement which elements of the "approach" of the respondents were adopted by the learned prothonotary: that is, there are no clear findings as to irrelevancy or any other specific criterion. Instead, in the passage quoted he appears to adopt the respondents' approach in order to "move the case forward expeditiously, within the meaning of Rule 3".
[6] The learned prothonotary then proceeds to discuss the need for a broad discretion in case-management judges. Also earlier in the reasons he had referred to the appellant's argument based on relevance as a "theoretical approach", contrasting that to the "practical reality . . . that the Court may wish to see the case move forward in accordance with Rule 3". (Reasons, paras 7 and 8). Consequently he refused to order answers to the loose categories of questions referred to by the respondents in paragraph 19 of their submissions.
[7] On appeal to a motions judge, the appellant argued that the prothonotary had erred in law and in principle by not basing his decision principally on the relevance or irrelevance of the questions. This it argued was not a matter of the exercise of discretion but rather a matter of law. The motions judge rejected this approach. Citing James River Corp. of Virginia v. Hallmark Cards, Inc. (1997), 72 CPR (3rd) 157 at 160-61 (FCTD) he held that with the advent of the new case management rules it was within the discretion of the prothonotary to decide what questions need be answered on discovery. He stated:
Ordering answers to questions refused during discoveries affects the pre-trial process and the time management of a file, thus falling within the powers of the prothonotary managing the case. (Reasons for Order, paragraph 17).
The motions judge did, however, also consider that the prothonotary had ruled on relevancy by "adopting" Merck's approach in paragraph 19 of its submissions, as discussed above. Further, he stated that the prothonotary was not obligated to restrict himself only to the relevancy test and was entitled to exercise his discretion so as "to ensure that the proceedings be resolved expeditiously".
[8] The appellant appeals from this decision asserting that the learned motions judge failed to apply the well-established and overriding principle of relevance to the pleaded issues as the test for compelling answers on examination for discovery. This it says is a substantive right which cannot be overridden by considerations of expediency or expedition in case management.
Analysis
Standard of Review
[9] It is common ground that when a motions judge hears an appeal from a prothonotary, assuming that no questions vital to the final issue of the case are involved, the reviewing judge can only exercise his or her own discretion in place of the prothonotary's if he or she concludes that the exercise of discretion by the prothonotary "was based upon a wrong principle or upon a misapprehension of facts . . .". (Canada v. Aqua-Gem Investments Ltd. [1993] 2 F.C. 425 at para. 95) F.C.A. In the present case the question for this Court is whether the prothonotary's decision was based upon a wrong principle. If so, the learned motions judge should have set it aside and exercised his own discretion.
The Law of Discovery
[10] The Rules of Court provide as follows:
| 223(1)
* * * * * * * * * *
(2) An affidavit of documents shall be in Form 223 and shall contain
(a) separate lists and descriptions of all relevant documents . . .
* * * * * * * * * *
240 A person being examined for discovery shall answer, to the best of the person's knowledge, information and belief, any question that
(a) is relevant to any unadmitted allegation of fact in a pleading filed by the party being examined or by the examining party . . . .
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223(1)
* * * * * * * * * *
......(2) L'affidavit de documents est établi selon la formule 223 et contient:
a) des listes séparées et des descriptions de tous les documents pertinents . . .
* * * * * * * * * *
240 La personne soumise à un interrogatoire préalable répond, au mieux de sa connaissance et de sa croyance, à toute question qui :
a) soit se rapporte à un fait allégué et non admis dans un acte de procédure déposé par la partie soumise à l'interrogatoire préalable ou par la partie qui interroge . . . .
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The jurisprudence in this Court on the scope of discovery is well settled. For convenience it is summarized in Reading & Bates Construction Co. et al v. Baker Energy Resources Corp. et al (1988) 24 C.P.R. (3rd) 66 at 70-72 (F.C.T.D.). It is clear that the primary consideration is relevance. If a prothonotary or a judge does, however, find a question to be relevant he or she may still decline to order the question to be answered if it is not at all likely to advance the questioner's legal position, or if the answer to a question would require much time and effort and expense to obtain and its value would appear to be minimal, or where the question forms part of a "fishing expedition" of vague and far-reaching scope.
Law of Case Management
[11] The respondents, the prothonotary, and the motions judge have laid considerable stress on two rules which, they say, underpin the case management system and authorize the Court to refuse answers to any questions if necessary to ensure the expeditious hearing of a case.
| 3. These Rules shall be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits.
385(1) A case management judge or a prothonotary assigned under paragraph 383(c) shall deal with all matters that arise prior to the trial or hearing of a specially managed proceeding and may
(a) give any directions that are necessary for the just, most expeditious and least expensive determination of the proceeding on its merits . . .
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3. Les présentes règles sont interprétées et appliquées de façon à permettre d'apporter une solution au litige qui soit juste et la plus expéditive et économique possible.
385(1) Le juge responsable de la gestion de l'instance ou le protonotaire visé à l'alinéa 383c) tranche toutes les questions qui sont soulevées avant l'instruction de l'instance à gestion spéciale et peut :
a ) donner toute directive nécessaire pour permettre d'apporter une solution au litige qui soit juste et la plus expéditive et économique possible . . . .
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Conclusion
[12] In appeals from the decisions of motions judges reviewing the decisions of prothonotaries, this Court is very reluctant to interfere. This is particularly true in respect of decisions of case management judges and prothonotaries where it has been said that this Court will interfere "only in the clearest case of a misuse of judicial discretion" (Sawridge Band v. Canada [2002] 2 F.C. 346 at 354).
[13] In my view, however, in the present case there has been an error of principle which has fettered the exercise of discretion by the prothonotary, and his decision has been confirmed by the motions judge. I do not understand Rule 385 to authorize a case management judge or prothonotary, in giving directions that are necessary for the "just, most expeditious and least expensive determination of the proceeding on its merits" to enable them to deny a party the legal right to have questions answered on examination for discovery which are relevant to the issues in the pleadings. That right is not merely "theoretical" (as the prothonotary put it) but is clearly spelled out in Rule 240 and I do not take the general words of Rule 385(1)(a) or of Rule 3 to be sufficient to override that specific right. I would also observe that the word "just" which appears in both these rules relied on by the respondents and the decision-makers below confirms that justice is not to be subordinated to expedition. A person who is a party to a civil action is entitled to ask any question on discovery that is relevant to the issue: that is a matter of justice to him, subject of course to the discretionary power of the prothonotary or a judge to disallow the question where it is abusive for one of the reasons mentioned above. No such findings have been made in this case.
[14] I would also observe that limiting the scope of questions for the sake of speed may in some cases be counterproductive. One of the purposes of discovery is to simplify proof at trial and another is to narrow the issues which remain in dispute. Both of these purposes are fully consistent with "expedition", so it is wrong to assume that completeness of discovery will always be an obstruction to the "most expeditious . . . termination of the proceeding on its merit . . .".
[15] In the present case I am not satisfied that the learned prothonotary directed his mind to specific questions of relevance. The relevance issues were not raised clearly before him in paragraph 19 of the respondents' submissions, on which he relied and which he adopted as his rationale. Further, his reasons suggest that his ultimate conclusion was based on what he understood to be the imperatives of case management and not on any test of relevance. In particular, he did not specifically conclude that the questions should not be answered because, although relevant, they would for example be abusive because calling for an opinion or because of their scope.
[16] For the same reasons, the motions judge should have identified the error in principle on which the prothonotary's decision was based and should have exercised the discretion himself.
[17] Therefore the appeal must be allowed and the matter sent back to the prothonotary.
Disposition
[18] The appeal will be allowed, the decision of the motions judge confirming the decision of the prothonotary in respect of the questions he refused to order answered will be set aside, the matter will be referred back to the prothonotary for a redetermination of the motion in respect of the questions whose answers he refused to order. Costs in this Court, before the motions judge, and before the prothonotary, are awarded to the appellant without regard to the final disposition of the case.
(s) "B.L. Strayer"
J.A.
I agree
"K. Sharlow J.A.
I agree
"B. Malone J.A.".
FEDERAL COURT OF APPEAL
COUNSEL OF RECORD
DOCKET : A-112-03
STYLE OF CAUSE : Apotex Inc. v. Merck & Co., Inc., Merck Frosst Canada & Co., Syngenta Limited, Astrazeneca UK Limited, and Astrazeneca Canada Inc.
PLACE OF HEARING : Toronto, Ontario
DATE OF HEARING : November 13, 2003
REASONS FOR JUDGMENT: STRAYER J.A.
CONCURRED IN BY: SHARLOW J.A.
MALONE J.A.
DATED: November 20, 2003
APPEARANCES:
Mr. Harry Radomski FOR THE APPELLANT
Ms. Judith Robinson
Ms. Frédérique Amrouni
Mr. Nelson Landry FOR THE MERCK RESPONDENTS
Ms. Nancy Pei FOR THE ASTRAZENECA RESPONDENTS
COUNSEL OF RECORD:
Goodmans
Toronto, Ontario FOR THE APPELLANT
Ogilvy Renault, S.E.N.C
Montreal, Quebec FOR THE MERCK RESPONDENTS
Smart & Biggar
Toronto, Ontario FOR THE ASTRAZENECA RESPONDENTS
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