[2013] 2 F.C.R. D-8
Practice
Discovery
Consolidated appeals commenced by Apotex from order by Federal Court (2012 FC 880) upholding orders made by prothonotary pursuant to Federal Courts Rules, SOR/98-106, r. 249 permitting respondents to obtain samples from batches of raloxifene hydrochloride—Parties providing case law indicating that word “necessary” used in various similar provincial rules appearing to have been consistently understood to mean there is “a reasonable possibility that the proposed test will reveal something useful for the trier of fact”—Apotex not explaining why this interpretation should not be adopted in respect of r. 249, relying on previous decisions from Court indicating that word “necessary” having different meaning in r. 249—Apotex arguing that test of relevance driving other discovery rules not sufficient to meet requirements of r. 249—Test under r. 249 not more stringent—Test clear, not requiring that Court provide more detailed, strict guidelines in respect of its application—Unwise to try to do so as use of words “necessary or expedient” evidently intended to give broad discretion to Court—Motions under r. 249 requiring Court to balance number of factors relevant to interests of party requesting inspection or samples, of party in possession of property, of trier of fact—Need to balance all relevant factors reason why party must move to get order under r. 249, contrary to other discovery rules—Prothonotary approaching task in such a way when setting out to determine motions before her—Appeals dismissed.
Apotex Inc. v. Eli Lilly Canada Inc. (A-337-12, A-338-12, A-339-12, 2013 FCA 45, Blais C.J., Gauthier and Trudel JJ.A., judgment dated February 19, 2013, 8 pp.)