(Disponible uniquement en anglais.)
Bard Peripheral Vascular, Inc. v. W.L. Gore & Associates, Inc. and W.L. Gore & Associates Canada Inc., 2015 FC 1176 (LeBlanc, J.)
October 16, 2015
Joanne Chriqui and Eric Bellemare of Norton Rose Fulbright, for Bard Peripheral Vascular, Inc. and Bard Canada Inc. (Plaintiffs/Defendants by Counterclaim)
Jonathan Giraldi and Sean Jackson of Aitken Klee LLP, for W.L. Gore & Associates Canada Inc. (Defendants/Plaintiffs by Counterclaim)
In this decision, the Federal Court (“FC”) dismissed Gore’s Rule 51 appeal by motion from part of a Prothonotary’s order that denied a Gore motion for an order to compel answers not provided by Bard’s corporate representative during examination for discovery by Gore in an underlying patent infringement action. The FC also dismissed Gore’s appeal from the costs ordered by the Prothonotary against Gore on the motion.
Discovery of both parties’ corporate representatives led to motions from both sides to compel answers. At the time of the hearing of the motion before the Prothonotary, Bard was seeking answers to 6 unanswered questions and Gore to 450. On the motion, Gore was successful on only 13 of the 450 questions for which it sought answers. The Prothonotary held that Gore’s remaining questions need not be answered on the grounds of relevance or because they sought an opinion (e.g. expert opinion, legal conclusion, or expressions of opinion or state of mind). The Prothonotary found that the magnitude of answers Gore sought on the motion was unreasonable and ordered costs on the motion in favour of Bard at the top of Column IV of the Tariff. Gore appealed the order, including on costs, by motion to the FC.
The FC described the well settled principle that discretionary, interlocutory orders of Prothonotaries ought not be revisited de novo on appeal unless they raise questions vital to the final issue of the case or they are clearly wrong (i.e. based upon a wrong principle or a misapprehension of the facts). Gore argued only the latter.
The FC found that the Prothonotary identified and applied the proper principles for determining if Bard’s objections to Gore’s questions were permissible, namely: (i) relevance alone does not mean a question must inevitably be answered because relevance is subject to the overriding discretion of a Prothonotary to control abuses of the discovery process; and (ii) a party may not be required to answer a question that forces it to express an opinion. The FC found no clear misuse of judicial discretion by the Prothonotary, including on the issue of costs. Consequently, the FC found it was open for the Prothonotary to conclude as he did and declined to substitute its own assessment of the same facts.
By: John Lucas, Deeth Williams Wall LLP