Sherman v. Pfizer Canada Inc., 2015 FCA 107 (Rennie, J.A.)
April 27, 2015
Sandon Shogilev and Jaro Mazzola for Sherman.
Andrew Bernstein and Nicole Mantini for Pfizer.
Following a Prothonotary's order to produce documents to Pfizer, Sherman filed a Federal Court motion to set aside the order but did not seek to stay the order pending a decision. When the motion came before the Federal Court the majority of the documents had been produced. The Federal Court held that the motion was moot because the order had been substantially complied with. Furthermore the Federal Court decided not to exercise its discretion to hear the appeal following the approach taken by the Supreme Court of Canada in Borowski v Canada (Attorney General), [1989] 1 SCR 342 [Borowski]. Sherman’s appeal to the Federal Court of Appeal was dismissed.
First, following Borowski, Rennie J.A. determined that the appeal was moot. Sherman had complied with the order and setting it aside would not undo the compliance. Sherman had produced the documents under a “without prejudice” to appeal letter but the Court stated that a unilateral assertion by one party does not preclude an argument that an appeal is moot. Rennie J.A. also stated that while a court is not bound to hear an appeal that may be moot, situations where counsel reach an agreement allowing an appeal to proceed notwithstanding full or partial compliance with a production order are to be encouraged. Rennie J.A. accepted that if there is no agreement a stay application may be the inevitable result in future cases.
Second, Rennie J.A. found the Federal Court Judge had not made a reviewable error in exercising his discretion not to hear the appeal despite its mootness. In determining whether to hear the hearing appeal the Federal Court Judge had not made a reviewable error when considering the Borowski criteria: existence of an adversarial context, judicial economy, the likelihood of the question reoccurring, and the absence of any public importance with respect to the production of documents in dispute.
By: Scott Widdowson, Borden Ladner Gervais LLP