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Unanswered Questions – Bard Successfully Avoids Answering Questions on Discovery

On October 16, 2015, Justice LeBlanc dismissed an appeal by W.L. Gore & Associates, Inc. and W.L. Gore & Associates Canada Inc.  from an order of Prothonotary Morneau who had denied Gore’s request for certain answers to questions posed during discovery.

In this action the Plaintiffs, Bard Peripheral Vascular, Inc. and Bard Canada Inc.  have accused Gore of infringing Canadian Patent No. 1,341,519. Gore has denied infringement and counterclaimed for a declaration of invalidity. Following the first round of discovery both parties brought motions to compel answers. While Gore was successful in having numerous questions answered, Prothonotary Morneau ordered that certain questions need not be answered. Gore appealed the Order seeking answers to questions it argued were relevant to unadmitted allegations of fact.

In dismissing Gore’s appeal, Justice LeBlanc stated he was unable to find a fundamental error of principle or misapprehension of the facts upon which he could substitute his discretion for that of Prothonotary Morneau, even if he might have arrived at a different result had he heard the matter at first instance. Justice LeBlanc noted that while law establishes if a question is relevant, discretion may be applied as to whether, nonetheless, it is appropriate to order that an answer be given. Justice LeBlanc also noted that in cases where the decision is rendered in the context of case management, it is generally recognized that the burden of a party seeking to overturn an interlocutory order by a case-manager is a heavy one as a case manager is normally intimately familiar with the history, details and complexities of the matter.

A copy of Justice LeBlanc’s Order and Reasons can be found here.

Gore was represented by Aitken Klee LLP.