Appeal from Prothonotary’s Order Consolidating Applications Dismissed

Neidrauer, Marian Wolanski and S. Hamid for the Applicant, Janssen-Ortho Inc. (“Janssen”)
Daniel Cappe for the Respondent, Apotex Inc. (“Apotex”)

Janssen commenced a prohibition application (judicial review proceeding) under the Patented Medicines (Notice of Compliance) (“PMNOC”) Regulations, naming Apotex as the respondent. The Applicant, Janssen, had sought a scheduling order with respect to this application. The Prothonotary agreed with Apotex’s proposal and so ordered, on August 11, 2009, that the schedule for this application (T-775-09) be the same as that of another application (T-1983-08) involving the same parties, and that this application be heard concurrently with that other pursuant to Rules 385(1) and 105 of the Federal Court Rules. Janssen appealed this scheduling order on the grounds that there was no formal motion for consolidation of the two proceedings and that Janssen did not have adequate opportunity to oppose consolidation.

The Court dismissed Janssen’s appeal, reasoning as follows. Janssen did not request an adjournment before the Prothonotary to have an adequate opportunity to oppose consolidation. Rather, it stated in its notice of motion for this appeal that the “Prothonotary invited the parties to make submissions” and “the position of the applicants…was asserted at the hearing”. Further, to consolidate two proceedings, it is only necessary to have some and not complete commonality of questions of law or fact of the separate causes of action [Fibreco Pulp Inc. v. Star Shipping A/S (1998), 145 F.T.R. 125 at paras. 42 and 46]. Moreover, the consolidation of proceedings may be ordered upon the Court’s own initiative [John E. Canning Ltd. v. Tripap Inc., [1999] F.C.J. No. 715 at paras. 26-27], the Prothonotary having the same power and discretion to do so as a case management judge [Remo Imports Ltd. v. Jaguar Cars Ltd. (2003), 24 C.P.R. (4th) 341 at para. 13]. The Prothonotary’s discretionary interlocutory decision is entitled to a high degree of deference and should not be interfered with unless issues in dispute are clearly material to the just disposition of the litigation and the ruling is fundamentally flawed [Lundbeck Canada Inc. v. Canada (Minister of Health), [2008] F.C.J. No. 1275 (F.C.A.) at para. 5]. Janssen did not discharge its heavy burden to show that the Prothonotary’s order is clearly wrong on either material before the Prothonotary or the Court. The Court concluded by advising Janssen that it can always ask the Prothonotary to use discretion to reconsider the scheduling order on the grounds that Janssen was taken by surprise at the hearing before the Prothonatry, as it now states, and that it has relevant evidence and reasons as to why the two applications should not be heard concurrently.

By: Eugene Derenyi, Stikeman Elliott