Merck & Co. Inc. v. Apotex Inc.
T-2408-91
MacKay J.
29/10/97
13 pp.
Application to quash subpoenas duces tecum issued in context of show cause order in course of contempt proceedings in patent matter-Second subpoena in effect replacing first-Application allowed-Both subpoenas quashed and set aside-Obligation of plaintiffs to disclose documents that are relevant and that may assist defence of Apotex and Dr. Sherman (Apotex Chairman and CEO) does not support subpoenas here issued, with broad description of documents sought-Where subpoena duces tecum describing documents in very general terms, as herein, not reasonable to presume, for purposes of production to Court, that all documents in general class so described are relevant to issues before Court-Issues primarily concern whether alleged contemners had knowledge of prohibitions included in reasons for judgment and judgment, whether they acted in contravention of prohibitions in December 1994 and January 1995, and, if both issues determined in affirmative, whether factors should be considered in determining any penalty to be imposed-All information in several classes of documents included in subpoenas cannot be considered relevant in these proceedings-Principle of disclosure, to assure opportunity to make full answer and defence, not ordinarily extending to information beyond possession or control of prosecution's office in criminal proceedings-Herein, in circumstances of case, by analogy, that office not extending beyond offices of counsel appearing for Merck in proceedings and of instructing counsel employed by Merck, Quesnel (Director of Legal Affairs of Merck Frosst Canada Inc.)-Clearly not extending to offices of employees of Merck Frosst, or offices of Merck, which are abroad and beyond reach of this Court's subpoena in any event-In criminal proceedings, documents from investigation leading to prosecution available to prosecutor subject to disclosure-In case of civil contempt with private prosecution, appropriate, for purposes of applying principle of disclosure, to consider office of inhouse counsel for Merck Frosst and office of counsel appearing in these proceedings as comparable to office of prosecution in ordinary criminal proceedings-Therefore, same disclosure principles applicable in case of relevant documents now in possession of Quesnel, as instructing counsel on behalf of Merck Frosst, as has generally been applied by counsel for Merck in these proceedings in relation to documents in their control-Application of standard established by Sopinka J. in R. v. Stinchcombe, [1991] 3 S.C.R. 326, and R. v. Egger, [1993] 2 S.C.R. 451-Standard should be applied by counsel in these proceedings working with Quesnel in regard to documents known to Quesnel, or predecessor, to be relevant in show cause proceeding-Order quashing subpoenas without prejudice to any application Apotex and Dr. Sherman may make for further subpoena seeking documents described with greater particularity than in subpoena here in question, and with basis for determining their relevance to issues before Court in these proceedings.