Obligation to Disclose Documents Applies to Documents Possessed by a Third Party
Apotex Inc. v. Sanofi-Aventis, 2010 FC 77 (Tabib, Proth.)

January 22, 2010

Ben Hackett for the Plaintiff, Apotex Inc. (“Apotex”)
Anthony Creber and Cristin Wagner for the Defendant, Sanofi-Aventis

In the context of an action, the parties brought reciprocal motions seeking further and better affidavit of documents. Sanofi-Aventis alleged that Apotex’s affidavit of documents was deficient in respect of 14 categories of documents. Apotex claimed that Sanofi-Aventis’ affidavit of documents was deficient in respect of 10 categories of documents. The motions were dismissed almost in their entirety: only one basket of documents in Sanofi-Aventis’ motion was granted.

The motions were largely unsuccessful on the bases that the parties failed to demonstrate the existence of other relevant documents. The law applicable to motions for further and better affidavits of documents is relatively well-settled. A moving party must show that (i) further documents likely exist; (ii) the documents would advance its own case (or hurt its opponent); and (iii) the opposing party has the documents in its power, possession or control (Rule 223(2)(a)(i) and (ii)) or is aware that some other third party does so (Rule 223(2)(a)(iv)).

Among the 14 categories of documents sought by Sanofi-Aventis were batch records relating to the manufacture of the bulk active pharmaceutical ingredient (API) by a “third party” supplier, “Signa” (one of the manufacturers of the API, which was no longer a party to the proceeding). Apotex argued that Signa was a separate entity: it would be “unfair” to visit upon Apotex Signa’s discovery obligation in the absence of any evidence that Apotex had power, possession or control over Signa’s documents.

Prothonotary Tabib found that Apotex had purchased the API from Signa and that batch records for Signa’s production likely existed and were relevant. It was Apotex’s obligation to list documents that it had grounds to either know or believe existed and were relevant − regardless of whether Signa was an independent third party. Prothonotary Tabib ordered Apotex to serve complete affidavits of documents, listing under the appropriate schedule the batch records for the relevant batches manufactured by Signa.

By: Asma Faizi, Torys LLP