Date: 19981120

Docket: A-417-98

CORAM:      STONE J.A.

         McDONALD J.A.

         SEXTON J.A.

BETWEEN:

NOVOPHARM LIMITED

     Appellant

     (Defendant)

     - and -

GLAXO GROUP LIMITED and GLAXO WELLCOME INC.

     Respondents

     (Plaintiffs)

     REASONS FOR JUDGMENT OF THE COURT

     (Delivered from the Bench at Toronto, Ontario, Friday, November 20, 1998)

STONE J.A.

[1]      This is an appeal from an order of the Trial Division of June 24, 1998 as amended July 20, 1998.

[2]      The issue here is whether the Motions Judge erred in requiring that the appellant re-attend on discovery for the purpose of answering Question 478. That question asks for the identity of the appellant's export customers.

[3]      At the hearing before this Court the appellant drew attention to the Trial Division's order of November 25, 1995 made pursuant to former Rule 480(a), referring the questions of the extent of infringement and damages or profits for determination pursuant to former Rules 500 et seq. We understand as well that the respondents have already or will have access to documentation respecting out-of-country transactions for the sale of the drug by the appellant.

[4]      In all of the circumstances, we are of the view that it was wrong in law to require the appellant to answer Question 478.

[5]      The appeal will therefore be allowed without costs, the order of the Trial Division upholding the order of the Associate Senior Prothonotary of June 3, 1998 to the extent that it required Question 478 to be answered, will be set aside. The respondents shall forthwith return to the appellant all of the documents which it has furnished to the respondent pursuant to the orders of the Associate Senior Prothonotary and of the Trial Division.

     "A.J. STONE"

     J.A.