Merck & Co., Inc. v. Nu-Pharm Inc., docket T-733-98

Date: 19981214

Docket: T-733-98

OTTAWA, ONTARIO, Monday, this 14th day of December, 1998

PRESENT:      THE HONOURABLE JUSTICE McGILLIS

BETWEEN:

     MERCK & CO., INC and

     MERCK FROSST CANADA INC.

     Applicants

     - and -

     NU-PHARM INC. and

     THE MINISTER OF HEALTH

     Respondents

     REASONS FOR ORDER AND ORDER

     [Delivered from the Bench at Ottawa, Ontario

     on Monday, December 14, 1998]

[1]      On October 27, 1998, I dismissed a motion brought by Nu-Pharm Inc. ("Nu-Pharm") for an extension of time to file affidavit evidence. In my Order dated October 27, 1998, I stated, in part, as follows:

[2]      After I had signed and rendered my Order in open Court, counsel for Nu-Pharm advised me that various affidavits were prepared and were ready for filing on or before the expiry of the September 15, 1998 deadline for the filing of affidavits. He further indicated that Nu-Pharm had an "agreement" with counsel for Merck & Co. Inc. and Merck Frosst Canada Inc. ("Merck") to permit it to file those affidavits. Counsel for Merck disputed the assertion that there had been any such agreement. Counsel for Nu-Pharm again emphasized that certain affidavits were prepared and were ready for filing prior to the expiry of the prescribed time period.

[3]      Since there was no evidence in the motion materials concerning affidavits that were prepared by Nu-Pharm and were ready for filing within the prescribed time period, I believed that counsel may have inadvertently neglected to seek an extension of time in relation to those affidavits. In the circumstances, I indicated to him that he could bring another motion for an extension of time, returnable before me, concerning the affidavits which were prepared and were ready for filing within the prescribed time period.

[4]      By Notice of Motion dated November 26, 1998, counsel for Nu-Pharm brought a motion seeking, among other things, permission to file four affidavits.

[5]      Having considered the materials submitted on the motion and the submissions of counsel, I am satisfied that the affidavits in question were not prepared and were not ready for filing prior to the expiry of the September 15, 1998 deadline for the filing of affidavits. In the circumstances, the affidavits in question fall within the terms of my Order dated October 27, 1998, in which I refused to grant an extension of time for the filing of Nu-Pharm's affidavits. Nu-Pharm shall therefore not be permitted to file the four affidavits in question.

[6]      In determining the appropriate order to be made in relation to costs in this matter, I have considered that, in bringing this motion, counsel for Nu-Pharm has sought to re-litigate my earlier Order. In my opinion, the motion was frivolous and vexatious, and constituted an abuse of process. Furthermore, voluminous materials were filed on the motion, and counsel for Merck, who is from Ottawa, was required to conduct two cross-examinations in Toronto.

[7]      In his submissions on costs, counsel for Merck requested the Court to order costs in the amount of $4,000.00, plus disbursements. Counsel for Nu-Pharm submitted that costs in the amount of $2,000.00 would be appropriate.

[8]      Having considered the submissions of counsel and all relevant factors, I have determined that costs should be awarded to Merck in the amount of $4,000.00, plus disbursements in the amount of $3,375.00.

[9]      IT IS ORDERED THAT the motion is dismissed. Costs are awarded to Merck in the amount of $4,000.00, plus disbursements in the amount of $3,375.00, payable forthwith in any event of the cause. The following timetable shall apply in this matter:

.