Date: 20040421
Docket: A-509-03
Citation: 2004 FCA 161
Present: SHARLOW J.A.
BETWEEN:
THE WELLCOME FOUNDATION LIMITED and
GLAXOSMITHKLINE INC.
Appellants
and
APOTEX INC.
Respondent
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario on April 21, 2004.
REASONS FOR ORDER BY: SHARLOW J.A.
Date: 20040421
Docket: A-509-03
Citation: 2004 FCA 161
Present: SHARLOW J.A.
BETWEEN:
THE WELLCOME FOUNDATION LIMITED and
GLAXOSMITHKLINE INC.
Appellants
and
APOTEX INC.
Respondent
REASONS FOR ORDER
SHARLOW J.A.
[1] The appellants seek a stay of the order requiring them to produce a further and better affidavit of documents. The reasons for that order are reported as Apotex Inc. v. Wellcome Foundation Ltd., [2003] F.C.J. No. 1551 (QL) (F.C.).
[2] An order may be stayed pending appeal if a serious issue is raised on the appeal, the appellant will suffer irreparable harm if a stay is not granted and the appeal succeeds, and the balance of convenience favours granting the stay: RJR-MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311.
[3] The standard for finding an arguable case on appeal is low and is met in this case.
[4] The appellants argue that irreparable harm may be found if the refusal to grant the stay would render the appeal futile or moot, effectively depriving them of their right of appeal. As support for that proposition, they rely primarily on Bining v. Canada, [2003] 4 C.T.C. 165, 2003 D.T.C. 5503, [2003] F.C.J. No. 1013 (QL) (F.C.A.), and Bisaillon v. Canada (1999), 251 N.R. 225, [2000] 1 C.T.C. 179, 2000 D.T.C. 6074, [1999] F.C.J. No. 134 (QL) (F.C.A.).
[5] Bining and Bisaillon each involved a "requirement" issued by the Minister of National Revenue under the Income Tax Act, R.S.C. 1985 (5th supp.), C. 1., to compel an individual to disclose certain information. An application for judicial review was made to have the requirements quashed. The applicant in each case argued that he had a right under the Canadian Charter of Rights and Freedoms not to disclose the required information to the Minister, and that the enforcement of the requirements would breach that right. In both cases, a stay of the requirement was sought in the Trial Division and refused. The order denying the stay was appealed, and this Court granted a stay pending the appeal of the order denying the stay.
[6] As I understand Bining and Bisaillon, the stay was not granted simply to protect a right of appeal. Rather, the stay was granted to preserve the opportunity to prevent the breach of a Charter right. That is what Létourneau J.A. meant in Bisaillon when he said, at paragraph 33 (my emphasis):
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In the case at bar I feel that the applicants would be likely to suffer such harm if the stay were not granted. Their appeal from the order by the motions judge will become moot or futile if Revenue Canada obtains the material requested before the appeal is decided on its merits. The harm seems especially irreparable since refusal to grant the stay is likely to deprive the applicants of the benefit of their right of appeal, which is itself concerned with obtaining a stay in a proceeding where the applicants' right to privacy is at issue as well as the legality and constitutionality of the exercise of a ministerial power. The applicants' appeal would become moot or futile from execution of the very order from which they are appealing.
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[7] That is also what Noël J.A. must have meant in Bining when he made the following comment, after accepting the submission of the applicant based on Bisaillon (at paragraph 10):
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It is also apparent that irreparable harm will likely be suffered in the absence of an interim stay since the appeal from the decision of the Trial Division would become moot and the appellant would effectively be denied his right of appeal.
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[8] I do not read these cases as authority for the proposition that any loss of a right of appeal necessarily results in irreparable harm. There is always a risk that some harm will result from complying with an order pending appeal. However, the harm is not irreparable if the appeal can result in an effective remedy for the harm.
[9] In this case, the question is whether the appellants will suffer irreparable harm if they are required to comply with the order to produce a further and better affidavit of documents pending the appeal of that order. It seems to me that the answer must be no. If this appeal succeeds, the affidavit and the transcripts of the cross-examination on the affidavit, if any, can simply be withdrawn from the court file and all copies returned to the appellants. There is no evidence that unjustified production of the affidavit by itself will cause the appellants a monetary loss that cannot be remedied. There is no evidence that the information to be included in the affidavit is such that its disclosure will have an adverse effect on the appellants. Certainly the appellants are not asserting, and cannot assert, that the disclosure will breach a fundamental legal right, such as a right under the Charter.
[10] I conclude that the appellants have failed to establish that they will suffer irreparable harm if the stay is not granted and their appeal succeeds. That is a sufficient ground for denying this motion for a stay.
[11] The respondent have asked for solicitor and client costs, to be fixed in the amount of $7,500, on the basis that the motion was brought for purposes of delay and had no realistic chance of success.
[12] The motion was not so unmeritorious as to amount to an abuse of process. However, it does seem to me that the appellants have sought some advantage in delay. I reach that conclusion because the appellants did not act in a timely manner in either complying with the order under appeal or seeking a stay. The motion for stay was not filed until six months after the order was made, in the face of attempts by the respondent to enforce compliance, and within days after the filing of the requisition for hearing, which is now scheduled for May 13, 2004. In these circumstances, the appellants should bear the costs of this motion on a scale that is higher than normal, but not as high as the solicitor and client scale. I will fix the costs of this motion at $3,000, payable forthwith by the appellants regardless of the outcome of the appeal.
(s) "K. Sharlow"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-509-03
STYLE OF CAUSE: THE WELLCOME FOUNDATION LIMITED and GLAXOSMITHKLINE INC. and APOTEX INC.
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: Sharlow J.A.
DATED: April 21, 2004
WRITTEN REPRESENTATIONS BY:
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Patrick E. Kierans
Allyson Whyte Nowak
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FOR THE APPELLANTS
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H.B. Radomski
David E. Lederman
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Ogilvy Renault
Barristers and Solicitors
Toronto, Ontario
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FOR THE APPELLANTS
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Goodmans LLP
Barristers & Solicitors
Toronto, Ontario
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FOR THE RESPONDENT
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