Date: 20060628
Docket: T-1847-03
Citation: 2006 FC 823
Ottawa, Ontario, June 28, 2006
PRESENT: THE HONOURABLE MADAM JUSTICE MACTAVISH
BETWEEN:
ABBOTT LABORATORIES and
ABBOTT LABORATORIES LIMITED
Applicants
and
THE MINISTER OF HEALTH and APOTEX INC.
Respondents
REASONS FOR ORDER AND ORDER
[1] This is an appeal from a decision of a prothonotary refusing to allow Apotex Inc. to file an affidavit to replace one struck by order of Justice O'Keefe.
[2] At the hearing of this appeal, I agreed to hold off rendering my decision, so as to allow the parties an opportunity to try to resolve this matter. Having now been advised that no resolution was possible, and for the reasons that follow, I have concluded that the prothonotary did not err in denying Apotex leave to file a replacement affidavit. As a result, this appeal will be dismissed.
Background
[3] Abbott Laboratories and Abbott Laboratories Limited (referred to collectively as "Abbott") brought prohibition proceedings against Apotex under the Patent Medicine Notice of Compliance Regulations with respect to the antibiotic drug clarithromycin. Abbott subsequently moved before Justice O'Keefe for an order disqualifying Dr. Jack Dunitz from appearing as a witness for Apotex, and striking his affidavit from the record. The basis for Abbott's request was that Dr. Dunitz had previously been consulted by Abbott's solicitors in relation to this matter.
[4] The issue of Dr. Dunitz' potential conflict first arose in April of 2005, shortly after Apotex served Abbott with Dr. Dunitz' affidavit. After the parties were unable to resolve the issue between themselves, Abbott brought its motion for disqualification before Justice O'Keefe.
[5] In a decision dated March 15, 2006, Justice O'Keefe found that Dr. Dunitz had knowingly received confidential information regarding Abbott's legal strategy in this matter from Abbott's solicitors, and that this information had been provided to him in the expectation that it would remain confidential. Justice O'Keefe also found that there was a risk that the confidential information would be disclosed, and that there was a risk of prejudice to Abbott if Dr. Dunitz was permitted to be an expert for Apotex in this matter.
[6] Justice O'Keefe was also satisfied that Apotex had been alerted by Dr. Dunitz before it retained him that there was a potential problem due to his prior contact with Abbott, and that
Abbott had not been trying to retain experts to preclude them from acting as experts for Apotex.
[7] As a consequence, Justice O'Keefe disqualified Dr. Dunitz from appearing as a witness in this matter, and struck his affidavit from the record.
[8] It is common ground that Justice O'Keefe was not specifically asked to grant Apotex leave to file a replacement affidavit, although an affidavit filed in response to Abbott's motion evidently made reference to the fact that Apotex would need to file a fresh affidavit in the event that Dr. Dunitz was disqualified.
[9] No motion for reconsideration was brought before Justice O'Keefe, seeking to have him deal with the question of Apotex's right to file an affidavit from a different expert. Rather, Apotex chose to appeal Justice O'Keefe's decision.
The Appeal from Justice O'Keefe's Decision
[10] As one of its grounds of appeal, Apotex asserts that Justice O'Keefe "erred in law, having stricken Dr. Dunitz' evidence, in failing to make an order that Apotex be permitted to file one additional expert affidavit to replace the evidence of Dr. Dunitz".
[11] In the event that the Federal Court of Appeal confirms Justice O'Keefe's decision disqualifying Dr. Dunitz, either in whole or in part, Apotex's notice of appeal explicitly seeks, as an alternative form of relief, that the Federal Court of Appeal grant it leave to file one expert affidavit to replace the evidence of Dr. Dunitz.
[12] Although the hearing of Abbott's application for prohibition is scheduled to be heard in September, no attempt has evidently been made by Apotex to expedite its appeal of Justice O'Keefe's decision, and no date has been set for the hearing of the appeal.
[12]
The Motion Before the Prothonotary
[13] By motion dated April 28, 2006, Apotex brought a motion in this Court pursuant to the provisions of Rule 312 of the Federal Courts Rules for leave to file an affidavit from a new expert to replace the Dunitz affidavit. Apotex's motion materials included an undertaking to abandon its appeal of Justice O'Keefe's order, should leave be granted to file a replacement affidavit.
[14] The motion was heard by a prothonotary on May 10, and an order was issued that same day dismissing Apotex's motion.
[15] The prothonotary was of the view that it was not appropriate for this Court to entertain Apotex's motion in light of the pending appeal of Justice O'Keefe's decision. The prothonotary observed that the matter was not strictly res judicata, as it did not appear that Justice O'Keefe ever refused to grant leave to Apotex to file a substitute affidavit, presumably because Apotex never requested such relief at the hearing of the motion. Nevertheless, the prothonotary was of the view that Apotex had squarely raised the issue of alternate relief in its appeal, and was seeking the very same relief from this Court in its motion.
[16] Having elected to proceed in this matter, the prothonotary was of the view that Apotex should be precluded from attempting to make an "end run" around the appeal process, and should, instead, be moving to expedite the appeal.
[17] The prothonotary also found that Apotex had failed to provide a satisfactory explanation for its delay in bringing the motion. Finally, the prothonotary stated that he was unable to determine, on the basis of the record before him, whether it was in the interests of justice to permit the filing of a replacement affidavit. As a consequence, Apotex's motion was dismissed, with costs in any event of the cause.
Standard of Review
[18] Where a discretionary order of a prothonotary is vital to the final issue in a case, the decision should be reviewed on a de novo basis: see Merck & Co. Inc. v. Apotex, [2003] F.C.J. No. 1925, 2003 FCA 488 at ¶ 18-19. However, where the decision under review is not vital to the final issue of the case, it ought not to be disturbed on appeal unless the order is clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts: Merck, at ¶ 19
[19] Apotex says that the issue before the prothonotary was clearly vital to the final issue of the case, as the prothonotary's decision fundamentally affects Apotex's ability to present its case in this proceeding. As a consequence, Apotex says that the matter should be reviewed on a de novo basis. Apotex further submits that even if the more exacting standard of review is applied, the decision of the prothonotary was based upon wrong principles and a misapprehension of the facts.
[20] The first question, then, is whether the prothonotary's decision was vital to the final issue in this case. In this regard, the decision in Merck makes it clear that the reference to a "question vital to the final issue of the case" refers to the subject matter of an order issued by a prothonotary, and not to the effect of such an order.
[21] As to what sort of questions will be viewed as vital to the final issues in a case, Merck teaches that the test is a stringent one. Examples of vital issues were cited by Justice Reed in James River Corp. of Virginia v. Hallmark Cards, Inc., (1997), 72 C.P.R. (3d) 157 (F.C.T.D.) where she stated that:
Questions that are vital to the final issues of a case are, for example, the entering of default judgment, a decision not to allow an amendment to pleadings, a decision to add additional defendants and thereby potentially reduce the liability of the existing defendant, or a decision on a motion for dismissal for want of prosecution. [at page 160, footnotes omitted]
[22] With this in mind, I am satisfied that the question before the prothonotary in this case was not one that is vital to the final issues in this case, and that, as a result, the decision should be reviewed using the more deferential standard. That said, I am of the view that the decision of the prothonotary was correct, and that, as a result, nothing turns on my choice of the standard of review.
Analysis
[23] I agree with the prothonotary that, having asserted that Apotex's right to file a replacement affidavit was an issue that was before Justice O'Keefe, and should have been dealt with by him, it is not appropriate for Apotex now to come to this Court in an effort to get the relief that it is already seeking in the Federal Court of Appeal.
[24] Counsel for Apotex candidly conceded that the issue of Apotex's right to file a replacement affidavit is currently before the Federal Court of Appeal. With this in mind, I agree with the prothonotary's characterization of Apotex's actions as being an attempt to do an 'end run' around the appeal process. In these circumstances, the prothonotary was correct to dismiss Apotex's motion.
[25] Moreover, on a motion for leave to file additional affidavit evidence under Rule 312, the Court is called upon to consider whether allowing the filing of the proposed new evidence would serve the interests of justice and not seriously prejudice the other side or unduly delay the proceedings: Mazhero v. Canada (Industrial Relations Board), [2002] F.C.J. No. 1112, 2002 FCA 295.
[26] Other relevant factors to be considered include whether the evidence sought to be adduced was available at an earlier date, whether the proposed new evidence will assist the court and whether the facts established by the supplementary affidavit are relevant to the case: see Atlantic Engraving Ltd. v. Lapointe Rosenstein (2002), 23 C.P.R. (4th) 5, at 8-9, 2002 FCA 503, and Robert Mondavi Winery v. Spagnol's Wine and Beer Making Supplies Ltd., (2001), 14 C.P.R. (4th) 269, 2001 FCT 1005, at 272-3.
[27] The prejudice to Apotex if it is not allowed to file a replacement affidavit is also a relevant consideration, and I am satisfied that the evidence that Apotex seeks to adduce through its replacement affidavit is important to its case.
[28] That said, I also agree with the prothonotary that there was insufficient information before him in this case as to allow him to balance the relevant factors, including the prejudice to Apotex, and to determine whether the interests of justice would be served by allowing Apotex to file a replacement affidavit. In this regard, it should be noted that Apotex did not attach a draft of the proposed new affidavit to its motion materials, nor did it disclose the identity of the proposed new expert or provide any information with respect to the individual's credentials or availability for cross-examination.
[29] Instead, Apotex simply asserted that the new affidavit would be on the same terms as the Dunitz affidavit, and that the opinions would be to the same effect as those expressed by Dr. Dunitz.
[30] As a consequence, the prothonotary had no way of determining who the expert was, when the affidavit would be completed, or what precisely the affidavit would say.
[31] Moreover, in addition to the fact that Apotex has provided no indication as to when the affidavit will be available, given the time that would reasonably be required by Abbott to properly prepare for the cross-examination of the new affiant, and the potential need for reply evidence, it is very difficult to see how significant delays in this proceeding could be avoided. The potential for delay is of particular concern in an application such as this, which is intended to be summary in nature. In this regard, it should be noted that the deadline for cross-examinations expired on May 31, Abbott's Application Record is due on July 6, and the hearing in this matter is scheduled to commence on September 11, 2006. Moreover, the statutory stay is scheduled to expire in December of this year, and there has been no consent to an extension of the stay.
[32] Finally, there is no evidence to indicate that the evidence sought to be adduced by Apotex was not previously available. In this regard, it should be noted that although Justice O'Keefe's decision was not rendered until March of this year, Abbott's concerns with respect to the propriety of Dr. Dunitz' involvement in this matter as an expert for Apotex was first brought to Apotex's attention in April of 2005. Thus Apotex has had more than sufficient time in which to find another expert witness to replace Dr. Dunitz.
[33] For these reasons, the appeal is dismissed, with costs fixed in the amount of $4,000, payable by Apotex in any event of the cause.
ORDER
THIS COURT ORDERS that the appeal is dismissed, with costs fixed in the amount of $4,000, payable by Apotex in any event of the cause.
"Anne Mactavish"
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