Appeal dismissed from motion to compel answers from examination for discovery

In Hospira Healthcare Corporation v. The Kennedy Institute of Rheumatology, Madam Justice Kane dismissed Hospira’s appeal from Prothonotary Milczynski’s Order arising from a motion by Hospira to compel Kennedy to answers 354 questions that were taken under advisement or refused at the examination for discovery of Kennedy’s representative. The underlying dispute is a patent infringement action involving the drug infliximab (Remicade) and Canadian patent no. 2,261,620. The Prothonotary ordered Kennedy to provide answers to 19 of the 354 questions. The finding was based on oral reasons provided at the hearing of the motion, and the finding that many questions had been resolved by the respondents providing or agreeing to provide answers. Hospira appealed 85 rulings in the Order.

In hearing the appeal, Justice Kane considered the following three issues:

  1. What is the applicable standard of review?
  2. Should the decision as a whole be reviewed on a de novo basis?
  3. Should specific rulings be reviewed on a de novo basis?

Standard of review

Regarding the applicable standard of review, Justice Kane concluded that discretionary orders of prothonotaries should not to be disturbed on appeal to a judge unless: (a) the questions in the motion are vital to the final issue of the case, or (b) the orders are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of facts.

De novo review

Justice Kane concluded that the decision as a whole is not clearly wrong and did not conduct a de novo review. She held that the Prothonotary did not exercise her discretion based on upon a wrong principle or upon a misapprehension of facts. None of the questions on the discovery motion will likely be vital to the final outcome of the case.

Justice Kane also concluded that none of the Prothonotary’s specific rulings were clearly wrong. The Prothonotary did not exercise her discretion based upon a wrong principle or upon a misapprehension of facts. The categories Justice Kane considered included standing and entitlement of the relief sought, deposition transcripts from foreign proceedings, validity, particularizing Kennedy’s pleadings, and minimum required basic information for documents.

Minimum required basic information for documents

Regarding the required basic information for documents, Hospira originally raised questions about authorship, the recipient of documents, dates of documents, and whether the documents were published and when. The questions were refused on discovery for lack of relevance, because the information was clear from the document or because Kennedy stated that it was unable to locate the document. Hospira submitted that the unsworn affidavit of documents provided by Kennedy lacked basic information, such as title, description or date. Hospira also submitted that the relevant documents should have been produced in their entirety, and that duplicate documents are a burden and should have been identified.  Hospira submitted that they should not be required to demonstrate why they needed dates and other details.

By the time of the motion, Kennedy served an affidavit of documents having an index indicating the title, date and document type, where known. Kennedy submitted that it is onerous to require them to track down the authors of documents, some of which were twenty years old, to ascertain dates, particularly given that Hospira could not indicate how this would be relevant.

Justice Kane held that the Prothonotary did not err in refusing to order Kennedy to search for more or seek out details, such as dates and publication sources, that would have been very onerous to track down. Hospira should not expect answers to questions they can obtain by reviewing the produced information and documents. Once Hospira has reviewed the information, they will have a further opportunity to ask more questions at the next discovery. Many of the questions were irrelevant and many of the answers to Hospira’s questions were self-evident from the documents. Hospira could not or would not indicate how the information sought would advance their case or respond to the Prothonotary’s request that they explain further. Justice Kane concluded that the Prothonotary’s decision refers to and applies the appropriate considerations and principles in the jurisprudence.

In dismissing the appeal, Justice Kane awarded costs fixed at $6,500 in any event of the cause to the respondents.

A copy Justice Kane’s Public Order and Reasons may be found here.