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Richter Gedeon Vegyészeti Gyar Rt v. Apotex Inc.
T-2520-93
2002 FCT 1284, Gibson J.
10/12/02
15 pp.
Appeal from order of Prothonotary requiring defendant to produce samples of drug pursuant to motion under r. 249 of Federal Court Rules, 1998--Appeal dismissed--Prothonotary acting as case management Prothonotary when making order under appeal--Standard of review: Court will only interfere in clearest cases of misuse of judicial discretion-- Prothonotary determining principles of res judicata not applying to bar motion notwithstanding previous motion for production of samples under r. 249 denied and upheld on appeal, and order to provide samples under r. 91 reversed on appeal--Distinguished Grandview (Town of) v. Doering, [1976] 2 S.C.R. 621--Materials before Prothonotary not same as those before Prothonotary on earlier motion under r. 249-- Reason additional materials before Prothonotary not presented in earlier motion not due to negligence, inadvertence, or accident--Plaintiff acting with reasonable diligence throughout--Facts falling within special circumstances constituting exception to application of res judicata--R. 249 test for production of samples: Court "satisfied" that production "necessary" or "expedient"--Prothonotary exercising discretion in favour of production--No reviewable error in exercise of discretion--No basis on which to interefere against standard of review enunciated in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.) and Microfibres Inc. v. Annabel Canada Inc. (2001), 16 C.P.R. (4th) 12 (F.C.T.D.)--Federal Court Rules, 1998, SOR/98-106, rr. 91, 249.