PRACTICE |
Discovery |
Merck & Co. Inc. v. Apotex Inc.
A-112-03
2003 FCA 438, Strayer J.A.
20/11/03
9 pp.
Appeal from Motions Judge's ((2003), 24 C.P.R. (4th) 231) decision dismissing appeal from decision of Prothonotary ((2002), 21 C.P.R. (4th) 86)--That decision dismissed appellant's motion to compel answers on discovery to certain questions to which answers refused during examinations for discovery of respondents--Whether ordinary rules of discovery can be overridden in interests of case- management --Appellant asserting Motion Judge failed to apply well-established and overriding principle of relevance to pleaded issues as test for compelling answers on examination for discovery--Whether Prothonotary's decision based upon wrong principle--Primary consideration relevance--Federal Court Rules, 1998, r. 385 not authorizing case management judge or prothonotary to give directions necessary for "just, most expeditious and least expensive determination of proceeding on its merits" to enable them to deny party legal right to have questions answered on examination for discovery which are relevant to issues in pleadings--That right clearly spelled out in r. 240--General words of rr. 385(1)(a) and 3 not sufficient to override that right--Word "just" confirms justice not subordinated to expedition--Anyone party to civil action entitled to ask any question on discovery relevant to issue--Limiting scope of questions for sake of speed may in some cases be counterproductive--One of purposes of discovery to simplify proof at trial and to narrow issues--Both purposes consistent with "expedition", so wrong to assume completeness of discovery will always be obstruction to "most expeditious . . . termination of the proceeding on its merit"-- In case at bar, Prothonotary did not direct his mind to specific questions of relevance--Appeal allowed--Federal Court Rules, 1998, SOR/98-106, rr. 3, 240, 385 (as am. by SOR/2002-417, s. 24).