Apotex Fermentation Inc. et al. v. Novopharm Ltd. et al., (1994) 93 Man.R.(2d) 19 (QB)

• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: February 16, 1994
• Jurisdiction: Manitoba
• Citations: (1994), 93 Man.R.(2d) 19 (QB)

Apotex Fermentation v. Novopharm (1994), 93 Man.R.(2d) 19 (QB)

MLB headnote and full text

Apotex Fermentation Inc. and Apotex Inc. (plaintiffs) v. Novopharm Ltd., Albert D. Friesen, Jagroop Dahiya, Leslie Dan, Sydney Smith, Rafik Henein, and KRKA P.O. (defendants)

(File No. CI 93-01-73733)

Indexed As: Apotex Fermentation Inc. et al. v. Novopharm Ltd. et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Oliphant, A.C.J.Q.B.

February 16, 1994.

Summary:

Apotex, a pharmaceutical company, claimed that a former employee converted highly confidential information to the use of its competitor, Novopharm. Apotex applied for injunctive relief. During the course of litigation, three deponents gave affidavit evidence on behalf of Apotex. During cross-examination on the affidavits the deponents, on the advice of counsel, refused to answer certain questions. Novopharm and the other defendants applied for an order compelling the deponents to answer the questions.

The Manitoba Court of Queen's Bench determined which questions had to be answered.

Practice - Topic 4252

Discovery - Examination - Range of - Questions related to issues between the parties - [See Practice - Topic 4573 ].

Practice - Topic 4261

Discovery - Examination - Range of - Privileged topics or communications - [See Practice - Topic 4577 , Practice - Topic 4578 and Practice - Topic 4584 ].

Practice - Topic 4573

Discovery - What documents must be produced - Documents relating to matters in issue - An employee was hired by Apotex after trading information about alleged theft of information by a former employee - During a cross-examination upon their affidavits, a representative of the plaintiff and the employee of the plaintiff were asked about what led up to the employee being hired - The Manitoba Court of Queen's Bench held that the witnesses were required to respond and disclose any notes, documents or memo-randa made during the meetings - See paragraphs 61 to 63 and 68.

Practice - Topic 4577

Discovery - What documents must be produced - Privileged documents - Attor­ney-client communications - Counsel took notes during interviews of various potential witnesses for the plaintiff - During a cross-examination upon affidavits the defendant asked that the notes be disclosed - The plaintiff claimed litigation privilege - The Manitoba Court of Queen's Bench held that the notes were privileged and discussions between counsel and the po­tential witnesses were also privileged - The court stated that the privilege was not waived simply by virtue of the fact that the potential witness who was subject to the interview gives evidence - See para­graphs 46 to 52.

Practice - Topic 4578

Discovery - What documents must be produced - Privileged documents - Docu­ments prepared in contemplation of litiga­tion - An employee of the plaintiff phar­maceutical company took notes during the execution of an Anton Piller order - He also prepared a summary statement for counsel for the plaintiff - The defendants attempted to get disclosure of the notes and the summary statement - The Manitoba Court of Queen's Bench held that the notes and summary statement were privileged - The court also held that what the employee told counsel was also privi­leged - However, he could still be ques­tioned as to what he observed during the execution - See paragraphs 64 to 65.

Practice - Topic 4584

Discovery - What documents must be produced - Privileged documents - Trade secrets - A pharmaceutical company was involved in the development of a drug - During cross-examination upon an affida­vit, counsel for the defence asked the president of the company to disclose what it was attempting to patent and what stage of development the "pipeline process" was at - The Manitoba Court of Queen's Bench held that the president was not required to disclose that information on the ground that to allow such a cross-examination would be unfair considering the competi­tive nature of the pharmaceutical industry - See paragraphs 53 to 59.

Practice - Topic 4585

Discovery - What documents must be produced - Privileged documents - Waiver - [See Practice - Topic 4577 ].

Cases Noticed:

Seaway Trust Co. et al. v. Markle et al. (1988), 25 C.P.C.(2d) 64 (Ont. S.C.), refd to. [para. 31].

Canadian Imperial Bank of Commerce v. Molony et al. (1983), 32 C.P.C. 213 (Ont. H.C.), refd to. [para. 32].

Lubotta v. Lubotta, [1959] O.W.N. 322 (Master), refd to. [para. 34].

Thomson v. Thomson, [1948] O.W.N. 137 (H.C.), refd to. [para. 35].

Norris v. Moyse (1965), 55 W.W.R.(N.S.) 62 (Man. Q.B.), refd to. [para. 36].

Station Square Developments Inc. v. Amako Construction Ltd. et al. (1990), 68 D.L.R.(4th) 743 (B.C.C.A.), refd to. [para. 37].

Levin v. Boyce (1985), 34 Man.R.(2d) 1 (C.A.), refd to. [para. 38].

Chmara v. Nguyen (1993), 85 Man.R.(2d) 227 (C.A.), refd to. [para. 39].

Smith v. Smith, [1958] O.W.N. 135 (H.C. Master), refd to. [para. 41].

Miller (Ed) Sales and Rentals Ltd. v. Cat­er­pillar Tractor Co., [1992] 5 W.W.R. 531 (Alta. Q.B.), refd to. [para. 44].

Bolivar v. Craft (1991), 101 N.S.R.(2d) 167; 275 A.P.R. 167 (T.D.), refd to. [para. 45].

Counsel:

D.C.H. McCaffrey, Q.C., G.P.S. Riley and J.A. Myers, for the plaintiffs;

R.S. Literovich, R.E. Shannon and I.L. Maharaj, for the defendants, Novopharm Ltd., Albert D. Friesen, Leslie Dan, Sydney Smith, Rafik Henein and KRKA P.O.;

E.W. Olson, Q.C., and L.C. Mitchell, for the defendant, Jagroop Dahiya.

This case was heard before Oliphant, A.C.J.Q.B., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judg­ment on February 16, 1994.