Date: 19980827

Docket: A-909-97

CORAM:      ROBERTSON J.A.

BETWEEN:

     GLAXO WELLCOME PLC

     Appellant

     (Respondent in stay application)

     - and -

     MINISTER OF NATIONAL REVENUE

     Respondent

     (Applicant in stay application)

Heard at Ottawa, Ontario, on Tuesday, August 25, 1998

Order delivered at Ottawa, Ontario, on Thursday, August 27, 1998

REASONS FOR ORDER BY:      ROBERTSON J.A.

Date: 19980827

Docket: A-909-97

CORAM:      ROBERTSON J.A.

BETWEEN:

     GLAXO WELLCOME PLC

     Appellant

     (Respondent in stay application)

     - and -

     MINISTER OF NATIONAL REVENUE

     Respondent

     (Applicant in stay application)

     REASONS FOR ORDER

ROBERTSON J.A.

[1]      This is an application for an order suspending the effect of the judgment of this Court dated June 17, 1998, pending an application for leave to appeal to the Supreme Court of Canada. That judgment allowed the appeal of Glaxo Wellcome PLC by granting an "equitable bill of discovery" against the Minister of National Revenue. It is through that discovery order that Glaxo seeks to obtain confidential information in the possession of the Minister, gathered in his capacity as administrator under the Customs Act. Specifically, Glaxo seeks the identify of certain persons it believes to be importing a drug in contravention of its two Canadian patents.

[2]      It is common ground that the reasons for judgment given by this Court raise several novel issues. It is also obvious that if the stay order is not granted an appeal to the Supreme Court is rendered moot, at least as between these two parties. Admittedly, it is within the realm of possibility that the Supreme Court could exercise its discretion and grant leave within the limits of the strict test set out in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 at 358-62 because of the precedential significance of the decision for which leave is being sought. But the lack of a continuing adversarial relationship, which arises once the information is released, militates in favour of the Minister.

[3]      As to the issue of irreparable harm to be suffered by Glaxo if the stay is granted, I have not been persuaded that such will occur. The information which Glaxo seeks relates to the disclosure of the names of importers of the drug in question for the years 1995, 1996 and 1997 only. On the basis of the affidavit evidence submitted to this Court, I can see no irreparable harm resulting from a delay in obtaining the names of those importers and in initiating lawsuits against the alleged wrongdoers. Specifically, I do not accept the argument that the usefulness of the information sought deteriorates with the passage of time. In my view, the balance of convenience weighs in favour of the Minister. Accordingly, the application is granted.

     "J.T. Robertson"

Date: 19980827

Docket: A-909-97

BETWEEN:

GLAXO WELLCOME PLC

     Appellant

     (Respondent in stay application)

- and -

MINISTER OF NATIONAL REVENUE

     Respondent

     (Applicant in stay application)

    

     REASONS FOR ORDER

          J.A.