DATE: 20030313

DOCKET: C38626, C38625, C38620 and C38615

COURT OF APPEAL FOR ONTARIO

RE: GLENN FORD, VITAPHARM CANADA LTD., FELMING FEED MILL LTD. and MARCY DAVID (Respondents (Plaintiffs)) - and - F. HOFFMANN-LA ROCHE LTD., ET AL (Appellants (Defendants))

BEFORE: CATZMAN, CARTHY and MOLDAVER JJ.A.

COUNSEL: David Kent for the appellants BASF Corp., and BASF Canada Inc. Don Houston and Jennifer Roberts-Logan for the appellants Lonza A.G. Derek J. Bell for the appellants Takedo Chemical Industries Ltd. and Takedo Canada Vitamin & Food Inc. F. Paul Morrison for the appellants Degussa-Hulls AG, Degussa Corp., and Degussa Canada Inc. Brent Olthuis for the appellants Hoffman-Laroche Ltd. John Callaghan and Ben Na for Sumitomo Chemical Ltd. C. Scott Ritchie, Mike Eizenga and Andrea DeKay for the respondents

HEARD: FEBRUARY 26, 2003

On appeal from the order of the Divisional Court (Farley, Matlow and Roy JJ.) dated April 20, 2002 and the order of Cumming J. dated January 26, 2001.

E N D O R S E M E N T

[1] The appellants appeal from the order of the Divisional Court dismissing their appeal from the order of Cumming J., who refused to enjoin the respondents from pursuing their motion in the United States seeking access to testimony and documents obtained through the discovery process in that country. The facts surrounding the dispute between the parties are fully set out in the reasons of Cumming J. and need not be repeated.

[2] These brief reasons are designed to address particular concerns raised by the appellants in their argument. They should be read in conjunction with the reasons of Cumming J., with which we substantially agree.

[3] In our assessment, the facts and circumstances of this case do not give rise to comity concern, nor are there any overriding policy or fairness issues that would warrant the injunctive or declaratory relief sought by the appellants.

[4] Properly characterized, the respondents are attempting to gather evidence in a foreign jurisdiction in accordance with the rules of that jurisdiction. The appellants challenge that characterization. They submit that the respondents are not “evidence-gathering” but are instead attempting to obtain, prior to certification, discovery of evidence given under compulsion of the United States discovery rules. The fallacy in this demarcation between the permissible and the impermissible is revealed by considering the circumstance if there was no protective order. Then the productions would be freely available and no complaint could be made if the respondents sought them out. Yet, they would have been produced under compulsion. So, compulsion cannot be the hallmark of improper conduct.

[5] With respect to the appellants’ submission that Judge Hogan has requested information about the governing rules of practice and procedure in Ontario and that this court should provide him with such information, we are respectfully of the view that this can and should be done through expert evidence adduced by the parties before him. As for the other concerns raised by the appellants, including the timing of the respondents’ motion, the nature and breadth of the information they seek, the fact that some of the documents might be subject to public interest privilege in Canada and the need to ensure that the respondents will abide by the terms of any amended protective order, these are best left to Judge Hogan. In our view, he is in the best position to make an order that is both fair and just and that takes into account the competing interests of the parties. In the end, we believe it is for Judge Hogan to determine when, if at all, to what extent and upon what terms and conditions, if any, the protective order should be varied as requested by the respondents.

[6] To the extent that Judge Hogan is concerned about the type of order that a Canadian court could make to ensure compliance in Canada with his protective order, we see no impediment to his making any variation of his order conditional upon it being matched by an order of similar nature from the Superior Courts of the provinces in which the Canadian litigation is proceeding.

[7] The appeal is dismissed with costs to the respondents. Counsel are invited to make written submissions with respect to the quantum of such costs in the usual manner.

Signed: “M.A. Catzman J.A.”

“J.J. Carthy J.A.”

“M.J. Moldaver J.A.”