Ottawa, Ontario, December 14, 2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
ELI LILLY CANADA INC.
and
PFIZER IRELAND PHARMACEUTICALS
REASONS FOR ORDER AND ORDER
(Re: Examination of Ricks and Wilcox)
[1] This is a third appeal (Motion #3) of the learned Prothonotary’s Order of March 6, 2006 but which in this case requires the Plaintiffs to answer certain questions which they had refused to do. The Plaintiffs also sought to adduce new evidence for the purposes of this appeal consisting of answers provided by the Defendant subsequent to the examination of Gary Wilcox and David Ricks.
II. BACKGROUND
[2] The facts have been described in the Reasons regarding Dr. Ellis’ examination (Motion #1). The only difference is that in this instance the Plaintiffs are refusing to answer questions rather than compelling answers as in the case of Dr. Ellis’ examination.
III. ANALYSIS
[3] The overarching legal principles have likewise been set forth in those same Reasons in respect of Motion #1.
A. Issue 1: Questions regarding PDE Inhibitors
[4] The learned Prothonotary ordered these questions answered as they related to the issue of “obviousness”. That issue is raised by the Plaintiffs as described in the earlier decision.
[5] This Court, in the earlier decision, ordered similar questions regarding PDE inhibitors to be answered by the Defendant, in part because the Plaintiffs had had to answer similar questions and because obviousness was clearly an issue in this litigation.
[6] The Plaintiffs have not shown that the learned Prothonotary erred in principle or misapprehended the facts.
B. Issue 2: Questions related to the Plaintiffs’ Research Programs on Erectile Dysfunction and Non-PDE Research
[7] The learned Prothonotary ordered the Plaintiffs to answer questions on their research into other substances but refused to compel the Defendant to answer a similar question on the grounds that it was too remote.
[8] I would have thought that the issue of research in this case was relevant to the issue, at least, of obviousness. However, the Plaintiffs did not appeal the Prothonotary’s decision not to compel the Defendant to answer questions regarding their research.
[9] If the Prothonotary’s Order regarding the Defendant’s research into other substances is correct and need not be answered, I cannot understand how the opposite conclusion could be reached in respect of the Plaintiffs. Either other research programs related to erectile dysfunction are relevant and proximate or they are not.
[10] I must conclude that amid the mass of questions, answers, objections, refusals and related debates, this issue was inadvertently missed. Therefore, it would appear that the learned Prothonotary misapprehended the facts and his decision on this issue must be overturned. The Plaintiffs ought not to be compelled to answer these questions.
C. Issue 3: Questions regarding the Development of Tadalfil
[11] The Plaintiffs advised that they had withdrawn their appeal on this issue.
D. Issue 4: Ordering Questions related to Lilly Production 49
[12] The Plaintiffs produced Lilly Production 49 and now seek to curtail the scope of questioning on that document. The proposition, generally a valid one, is that not everything in a document produced is in itself relevant to the issues in the specific litigation. However, a document may contain relevant information which may be explored on discovery.
[13] Since the test of relevance in respect of discovery is fairly broad - “may fairly lead to an inquiry”, it has not been established that in respect of the questions related to Lilly Production 49, the learned Prothonotary erred in such a manner that this Court should substitute its opinion for that of the Prothonotary.
E. Issue 5: Laboratoire Glaxo Wellcome S.A. Question
[14] The appeal on this issue was withdrawn at the hearing before this Court.
IV. CONCLUSION
[15] I have allowed in the new evidence requested for the very limited purpose for it was said to be used – to set context. It was evidence which could not have been obtained at an earlier date.
[16] This is the last of three appeals of a Prothonotary appeal in which the subject matter was originally canvassed over several days. These Prothonotary decisions were divided into three appeals and represented as two-hour appeals each. As such, they were set down for regular motions day hearing. This is a practice which should be actively discouraged. Matters of this complexity should be set down for a special sitting where appropriate hearing and writing time can be allocated.
[17] For the reasons given, this appeal is allowed in part. Costs shall be in the cause.
ORDER
IT IS ORDERED THAT the appeal is allowed in part, the Plaintiffs are not required to answer questions related to Items Nos. 180-184, 189-192 and 207. Costs shall be in the cause.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-341-02
STYLE OF CAUSE: LILLY ICOS LLC and
ELI LILLY CANADA INC.
and
PFIZER IRELAND PHARMACEUTICALS
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 29 and 30, 2006
APPEARANCES:
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Mr. Donald Cameron Ms. Josée Gravelle
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Ms. Christine M. Pallotta Mr. Christopher G. Tortorice
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FOR THE DEFENDANT
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SOLICITORS OF RECORD:
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OGILVY RENAULT LLP Barristers & Solicitors Toronto, Ontario
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BERESKIN & PARR Barristers & Solicitors Toronto, Ontario |