[1] The variance order under appeal is discretionary and the test enunciated by the Supreme Court of Canada in the case of Reza v. Canada, [1994] 2 S.C.R. 394 applies. That test has established that this Court may intervene to overturn a Motions Judge's order only where the Motions Judge has failed to give sufficient weight to all relevant factors. It is not sufficient, however, that an appellate court might have placed different weight on each of the relevant factors that were considered and, indeed, have reached a different conclusion on a motion for variance.

[2] The test for varying a protective order was set out in Smith, Kline and French Laboratories Ltd. v. Canada (Attorney General), [1989] F.C.J. No. 223 (T.D.), aff'd [1997] F.C.J. No. 689 (C.A.) as being whether the facts establish some change in circumstances or compelling reason to vary. Notwithstanding the able argument of appellant's counsel, we are all satisfied that the Motions Judge considered all the relevant factors and did not commit a reviewable error in varying the protective order as he did.

[3] We would dismiss the appeal with costs.

"B. Malone"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-154-04

STYLE OF CAUSE: APOTEX INC.

Appellant

and

AB HASSLE and ASTRA PHARMA INC.

Respondents

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: JUNE 9, 2004

REASONS FOR JUDGMENT

OF THE COURT: (LINDEN, SHARLOW & MALONE JJ.A)

DELIVERED FROM THE

BENCH BY: MALONE J.A.

APPEARANCES:

Mr. Nando DeLuca

Ms. Julie Rosenthall FOR THE APPELLANT

Mr. J. Sheldon Hamilton

Ms. Kavita Ramamoorthy FOR THE RESPONDENTS

SOLICITORS OF RECORD:

Goodmans LLP

Toronto, Ontario FOR THE APPELLANT

Smart and Biggar LLP

Toronto, Ontario FOR THE RESPONDENTS

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Apotex Inc. v. AB Hassle, 2004 FCA 227

Citations2004 FCA 227

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2004 FCA 227