Date: 20041118
Docket: T-2078-00
Citation: 2004 FC 1608
BETWEEN:
BRISTOL-MYERS SQUIBB COMPANY and
BRISTOL-MYERS SQUIBB CANADA INC.
Plaintiffs
- and -
APOTEX INC.
Defendant
REASONS FOR ORDER
PINARD J.:
[1] This is a motion on behalf of the defendant to set aside the Order of Madam Prothonotary Aronovitch dated July 27, 2004 and substituting therefore an Order requiring the plaintiffs' representatives, Ms. Johanna Mercier and Mr. Joseph Yevich, to re-attend for examination for discovery to provide under oath, answers to undertakings, matters taken under advisement and refusals given at their examinations in addition to those already ordered answered by the Prothonotary.
[2] Upon hearing counsel for the parties and upon reading the relevant material filed, I am not prepared to conduct a de novo review of the merits of the impugned decision and to consider exercising my own discretion differently for the following reasons:
1. on the basis of the submissions contained in paragraphs 12 to 60 of the plaintiffs' written representations, I am of the view that the defendant has failed to demonstrate that the Prothonotary's decision is "clearly wrong", in that it was based upon an incorrect principle of law or misapprehension of the facts, or that the question raised is vital to the "final issue" in the case (see Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 at 454 (C.A.)); furthermore,
2. the defendant has failed to meet the heavy burden of demonstrating that the Prothonotary's interlocutory decision represents the "clearest case of a misuse of judicial discretion" (see Sawridge Band v. Canada, [2002] 2 F.C. 346 at 354 (C.A.)).
[3] Consequently, the motion is dismissed, with costs.
JUDGE
OTTAWA, ONTARIO
November 18, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2078-00
STYLE OF CAUSE: BRISTOL-MYERS SQUIBB COMPANY and BRISTOL-MYERS SQUIBB CANADA INC. v. APOTEX INC.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: November 16, 2004
REASONS FOR ORDER: The Honourable Mr. Justice Pinard
DATED: November 18, 2004
APPEARANCES:
Mr. Patrick Smith
Mr. Jay Zakaib FOR THE PLAINTIFFS
Mr. David E. Lederman FOR THE DEFENDANT
SOLICITORS OF RECORD:
GOWLING LAFLEUR HENDERSON LLP FOR THE PLAINTIFFS
Ottawa, Ontario
GOODMANS LLP FOR THE DEFENDANT
Toronto, Ontario