PRACTICE |
Discovery |
Production of Documents |
Pfizer Canada Inc. v. Apotex Inc.
T-2282-01
2003 FCT 40, Snider J.
16/01/03
10 pp.
Motion to set aside order of prothonotary dismissing motion for production of certain documents and materials by applicants--Respondent alleging production of documents and materials required to prepare responding affidavit evidence --Discretionary orders of prothonotaries ought not to be disturbed on appeal unless clearly wrong, i.e. based upon wrong principle or upon misapprehension of facts or unless orders raise questions vital to final issue of case--In present case, order not raising questions vital to final issue of case-- Accordingly, to succeed, respondent must demonstrate prothonotary's decision based upon wrong principle or upon misapprehension of facts--No specific Federal Court rule allowing for disclosure at this stage of proceedings--In absence of specific provisions, r. 3 should, as argued by respondent, apply in present instance--R. 3 consisting of rule of interpretation, not a general procedural catch--all-- Respondent argued prothonotary's order constituted error in principle and misapprehension of facts--Issue raised by respondent related to ability of respondent to coherently respond to evidence filed by applicants--Court found prothonotary responded correctly to argument--In circumstances, impossible to contend respondent does not know case has to meet or precluded from putting in evidence, in support of underlying application--Completion of positive or affirmative evidence completely in control of respondent-- Order of prothonotary not clearly wrong, ought to stand-- Motion dismissed--Federal Court Rules, 1998, SOR/98-106, r. 3.