PRACTICE |
Discovery |
Production of Documents |
Apotex Inc. v. Wellcome Foundation Ltd.
T-3197-90
2004 FC 574, Tremblay-Lamer J.
15/4/04
8 pp.
Motion by Apotex Inc. (Apotex) to strike paragraphs of Prothonotary's order requiring protection of documents-- Statement of issues, affidavits of documents not yet filed--In Montana Band v. Canada, 2001 FCT 666; [2001] F.C.J. No. 991 (F.C.T.D.) (QL), Hugessen J. confirmed Federal Court Rules, 1998 (Rules) clearly requiring initial judgment of relevance of documents before production by producing party--Thus, as affidavit of documents not yet delivered, premature for Prothonotary to order categories of documents Apotex required to list and produce therein--Presumption affidavit of documents including complete list of relevant documents--Only after affidavit of documents submitted that receiving party can demonstrate incomplete--Burden then on receiving party to prove existence, control, relevance of documents--Prothonotary disregarded appropriate procedure --Prothonotary also erred in law in granting Glaxo's request to produce in absence of any formal motion--Pursuant to Rules, r. 47(2), where rule provides powers of Court to be exercised on motion, powers may be exercised only on bringing of motion--Rr. 225, 227 and 229 specifically stipulate where Court satisfied affidavit of documents inaccurate or deficient, it may order, on motion, accurate affidavit of documents be submitted--Prothonotary erred in finding had jurisdiction to make such order pursuant to powers attributed to referee by rr. 156, 157--Case management prothonotary deciding matters preliminary to actual reference --Since Prothonotary not having discretion on this matter, Glaxo's arguments pertaining to necessity for elbow room to resolve interlocutory matters, and high level of deference owed to Prothonotary acting as case management judge, not applicable--Further, Apotex's rights breached by order-- Party's right to make representations and present evidence cannot be trumped by will to govern proceeding in simplest and most expeditious manner--R. 385 not attributing to case management judge or Prothonotary jurisdiction to grant order which could only be granted on motion, thereby breaching Apotex's right to receive written submissions and prepare adequate response to motion--Motion granted--Federal Court Rules, 1998, SOR/98-106, rr. 47(2), 156, 157, 225, 227, 229, 385.