Digests

Apotex Inc. v. Wellcome Foundation Ltd.

T-1686-01

2003 FC 1229, von Finckenstein J.

21/10/03

9 pp.

Appeal from Prothonotary's order dismissing plaintiff's motion for further and better affidavit of documents--Main proceeding concerning prohibition proceedings under Patented Medicines (Notice of Compliance) Regulations in respect of drug acyclovir--Prothonotary dismissed motion on basis plaintiff had failed to establish through compelling evidence that relevant documents exist, but have not been listed by defendants in affidavit of documents--Issues: (1) standard of review; (2) whether Court can consider pleadings, affidavits used in parallel cases, notwithstanding that Prothonotary had only decision before him when considering motion currently under appeal; (3) should Prothonotary herein have followed decision in Apotex Inc. v. Merck & Co. Inc., 2002 FCT 166; [2002] F.C.J. No. 236 (QL), given near identical nature of both cases, and principle of judicial comity?--Appeal allowed in part--(1) Prothonotary herein applied wrong principle when concluded plaintiff failed to provide compelling evidence relevant documents existed and had not been disclosed--Order for further production warranted where requesting party produces sufficient or persuasive evidence documents exist and should have been disclosed--(2) While reference made, before Prothonotary, to parallel case, neither notice of motion nor affidavit placed before Court during proceedings--Prothonotary made no reference to parallel decision in his order--While no new evidence should be admitted by Court when hearing appeal from Prothonotary, Court can take into consideration documents part of public record--Herein, pleadings, affidavit public documents, therefore can be taken into consideration-- (3) In Apotex Inc. v. Merck & Co. Inc., nearly identical in nature to present case, can be inferred that Prothonotary therein found applicants had made out sufficient case for further particulars; documents requested relevant to case in issue and should be produced; that request should be limited in time to period post- 1993 when Regulations first enacted-- Prothonotary therein required defendants to disclose documents related to corporate relationship for years 1993- 1998, any relevant communication between themselves and government officials regarding scope, applicability of Patented Medicines (Notice of Compliance) Regulations, s. 8-- Common business practice suggesting defendants have failed to disclose existence of all documents regarding their relationship relevant to proceedings--For reasons of consistency, predictability and judicial comity, order issued by Prothonotary therein equally applicable herein as in Apotex Inc. v. Merck & Co. Inc. and should be followed--With respect to other types of documents, Court cannot order disclosure of documents based upon mere speculation that corporate relationship with third parties may exist or based upon unsubstantiated claim that documents in possession, custody or control of defendant--Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, s. 8.