Apotex Inc. v. Canada

Apotex Inc. v. Canada

The appeal was allowed in part: the Prothonotary's refusal was overturned for the first group of questions and for questions 132, 133 and 135 because they are relevant and do not seek the substance of solicitor-client communications and privilege was waived as to the identity of counsel; the second group remains subject to correction by BMS if a veto policy exists; specific solicitor-client documents and a privilege list remain protected and need not be produced.

Citation
2004 FC 1598
Parties
Plaintiff (moving Party): Apotex Inc.; Defendant (responding Party): Her Majesty the Queen; Defendant (responding Party): Bristol-Myers Squibb Canada Inc.; Defendant (responding Party): Bristol-Myers Squibb Company
Court
Federal Court
Jurisdiction
Canada
Judgment Date
15 November 2004
Procedural Posture
Civil Action for Damages and Accounting Under Patented Medicines (notice of Compliance) Regulations; Discovery Motion / Pre Trial Motion to Appeal Prothonotary Discovery Ruling
Outcome
Appeal allowed with costs in part
Legal Topics
Discovery, Solicitor Client Privilege, Relevance, Privilege Waiver, Patented Medicines (notice of Compliance) Regulations S.8, Standard of Review for Prothonotary Orders
Source Language
English
Civil Procedure Intellectual Property Administrative Law Evidence Discovery Solicitor Client Privilege Relevance Privilege Waiver +2 more

Case Brief

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Parties

Apotex Inc.

Plaintiff (moving Party)

Her Majesty the Queen

Defendant (responding Party)

Bristol-Myers Squibb Canada Inc.

Defendant (responding Party)

Bristol-Myers Squibb Company

Defendant (responding Party)

Procedural Posture

Civil Action for Damages and Accounting Under Patented Medicines (notice of Compliance) Regulations; Discovery Motion / Pre Trial Motion to Appeal Prothonotary Discovery Ruling

Legal Issues

  1. 1 Whether specified discovery questions are relevant to issues pleaded including relationship between BMS Canada and BMS US and alleged pre-emptive launch through Linson
  2. 2 Whether certain questions are hypothetical and require speculation and thus may be refused
  3. 3 Whether questions and documents are protected by solicitor-client privilege or confidentiality and whether privilege has been waived

Ratio Decidendi

The appeal was allowed in part: the Prothonotary's refusal was overturned for the first group of questions and for questions 132, 133 and 135 because they are relevant and do not seek the substance of solicitor-client communications and privilege was waived as to the identity of counsel; the second group remains subject to correction by BMS if a veto policy exists; specific solicitor-client documents and a privilege list remain protected and need not be produced.

Court Disposition

Appeal allowed with costs in part

Orders

  • The appeal is allowed with costs.
  • The witness, Ms. Mercier, is required to answer the first group of questions and questions 132, 133 and 135.