[1] On September 26, 2002, Apotex sent a letter asserted to be a Notice of Allegation under the Regulations in respect of magnesium omeprazole tablets in strengths of 10 mg and 20 mg and Canadian Patents Nos. 1,292,693, 1,302,891 and 2,166, 483 ("Patents").

[2] In response, the applicants (Astrazeneca) commenced the current proceeding by a notice of application dated November 8, 2002, seeking, among other things, an order prohibiting the Minister of Health from issuing a notice of compliance to Apotex in respect of omeprazole magnesium 10 mg and 20 mg tablets, until the expiration of the Patents.

[3] The Astrazeneca filed and served their evidence on January 10, 2003. On April 2, 2003, Apotex filed and served its evidence, including an affidavit of Dr. Michael Cima sworn March 31, 2003 ("Cima 1").

[4] By notice of motion dated May 7, 2003, the Astrazeneca sought to strike out portions of Apotex' evidence, or in the alternative, an order granting the Astrazeneca leave to file the affidavit of Dr. Jörgen Lindquist, sworn May 6, 2003 ("Lindquist affidavit"). In support of their motion, the Astrazeneca relied, in part, on the Lindquist affidavit.

[5] By notice of motion dated May 21, 2003, Apotex sought, among other things, an order striking the Lindquist affidavit.

[6] Dr. Lindquist was cross-examined on his affidavit on May 27, 2003. Following a number of interlocutory motions (not relevant for the purposes of this appeal) the applicant's motion seeking to file the Lindquist affidavit was ultimately made returnable on August 19, 2003.

[7] In the interim, on July 23, 2003, Prothonotary Tabib, as case manager of this file, had issued directions to the parties to jointly or separately submit representations as to the next steps to be taken in the proceeding, no later than by August 6, 2003.

[8] On August 5, 2003, in a letter to the Court, counsel for Apotex stated as follows:

As the Court is likely aware, the Applicants' [sic] have sought leave to file further affidavit evidence in this proceeding. The Applicants' motion is scheduled to be heard on August 19, 2003.

In the event that the Applicants are granted leave to file further affidavit evidence, Apotex will seek the right to file reply evidence either as part of the Order granting the Applicants the right to file further evidence or by way of separate motions.

In view of the foregoing, and particularly the uncertainty surrounding the status of the evidentiary record in this proceed[ing], Apotex respectfully proposes that delivery of representations as to the next steps to be taken in this be[sic] proceeding be deferred until disposition of the Applicants' motion.

[9] On August 6, 2003, both parties served their representations regarding the next steps to be taken. By order dated August 8, 2003, Prothonotary Tabib set a schedule for a number of interlocutory steps. Upon considering Apotex' letter of August 5, 2003, Prothonotary Tabib ordered on August 8, 2003 (Tabib Scheduling order) as follows:

Any motion the Respondent intends to make, for leave to file an additional affidavit in the event that the Applicants are allowed to file the additional affidavit of Dr. Lindquist, shall be made either as a part of its motion record in response to the pending motion of the Applicants, or as a motion made returnable at the general sitting of August 19, 2003 in Toronto, and shall be served and filed no later than August 14, 2003.

[10] By order dated August 21, 2003, in response to the May 7^th notion of Motion, Prothonotary Lafrenière granted the Astrazeneca leave to file the Lindquist affidavit, expressly finding the affidavit constituted "proper reply evidence" (the "Lafrenière Order"). The Prothonotary also directed that Astrazeneca may rely only on certain portions of the Lindquist affidavit. The order made no mention of Apotex' request for leave to file the sur- reply evidence. However, an abstract of the hearing conducted on August 19, 2003, is entered as part of the Court's record and provides, in part, as follows:

The Court indicated that it is not satisfied that it has sufficient evidence before it to grant leave for the Respondent to file sur-reply. The Court further indicated that the Respondent is free to submit a subsequent motion to Prothonotary Tabib's attention after this matter has been disposed of. The Court refers this matter to Prothonotary Tabib should the Respondent wish to submit a motion.

[11] By notice of motion dated August 29, 2003, Apotex sought leave to file sur-reply in the form of a second affidavit of Dr. Cima (Cima 2). This motion was heard by teleconference before Prothonotary Tabib on November 21, 2003.

[12] By order dated November 24, 2003 (the Tabib Order) Prothonotary Tabib dismissed Apotex' motion without hearing arguments on the merits. In her Reasons for Order, Prothonotary Tabib held that Apotex' motion for leave to file additional evidence before Prothonotary Lafrenière on August 19, 2003 was, in effect, dismissed without leave to reapply having been granted.

[13] The final paragraph of Prothonotary Tabib's reasons puts it as follows:

The Court record discloses that, as per the direction of the Court, a draft order was submitted by Astrazeneca's counsel, presumably after approval by Apotex's counsel. If, as Apotex suggested, Prothonotary Lafrenière had simply declined to deal with its request and either referred the matter to me or granted leave to reapply with a fresh motion, this disposition should have been part of the order. Apotex had the opportunity to ensure that it be included clearly in the order. Alternatively, it could have applied to Prothonotary Lafrenière to reconsider his order pursuant to Rule 397. It is simply inappropriate and abusive for a party who fails to ensure that an order deals with all the issues determined or presented for determination at a hearing to construe the resulting uncertainty as an authorization to reapply on better evidence.

[14] Apotex now has filed two motions seeking permission to file the Cima 2 affidavit on the basis of an order that will either:

a) set aside Prothonotary Lafreniere's order (coupled with permission for Apotex to bring an appeal outside the 10 day period of Rule 51(2)), or

b) set aside Prothonotary Tabib's order.

Both motions were heard together and I will deal with both of them in these reasons.

Issue

[15] Two issues arise:

I. Should either the order of Prothonotary Lafreniere or the order of Prothonotary Tabib be set aside

II. If, yes, should Apotex be granted the right to file Cima 2 as sur-reply evidence.

Analysis

Issue I

[16] This is clearly a case where both sides vigorously litigate against each other and avail themselves of all procedural opportunities to advance their case or denigrate that of their opponents. These are not easy cases for the Court to handle and the case manager (Prothonotary Tabib in this case) does not have an easy task. As this Court has stated in Sawridge Band v. Canada (C.A.), [2002] 2 F.C. 346 at 354 (C.A.):

We would take this opportunity to state the position of this Court on appeals from orders of case management judges. Case management judges must be given latitude to manage cases. This Court will interfere only in the clearest case of misuse of judicial discretion. This approach was well stated by the Alberta Court of Appeal in Korte v. Deloitte Haskins & Sells (1995), 36 Alta. L.R. (3d) 56, paragraph 3, and is applicable in these appeals. We adopt these words as our own.

This is a very complicated lawsuit. It is subject to case management and has been since 1993. The orders made here are discretionary. We have said before, and we repeat, that case management judges in these complex matters must be given some 'elbow room' to resolve endless interlocutory matters and move these cases on to trial. In some cases, the case management judge will have to be innovative to avoid having the case bog down in a morass of technical matters. Only in the clearest cases of mis-use of judicial discretion will we interfere (¼).

[17] In this case, after several hotly contested motions Prothonotary Tabib issued her scheduling order. At that time the question of whether the Lindquist affidavit should be admitted was still open. It was decided only decided on August 21, 2003.

[18] Apotex was trying to keep the Lindquist affidavit out, yet as an alternative wanted to have the right, should it be unsuccessful in keeping Lindquist out, to debate the issue of whether it should be permitted to file sur-reply evidence. It sought direction from the scheduling Prothonotary as to where and when the issue of sur-reply, if required, would be argued.

[19] Prothonotary Tabib's order of August 8 was clear. She offered two options when she stated that any motion for sur-reply:

...shall be made either as a part of its motion record in response to the pending motion of the Applicants, or as a motion made returnable at the general sitting of August 19, 2003 in Toronto, and shall be served and filed no later than August 14, 2003.

[20] Apotex decided to take the first option, to have the issue dealt with as part of the motion deciding whether to admit the Lindquist affidavit or not. In paragraphs 114 to 120 of its written representations before Lafreniere it sets out its opposition to the Lindquist affidavit ( basically that notwithstanding that Astrazeneca was the applicant it tried to have the last word through the manouevre of filing the Lindquist affidavit) ending with paragraph 121 stating:

Finally, in the event that this Court is inclined to leave AstraZeneca to file the reply affidavit of Dr. Lindquist, Apotex respectfully requests that it be granted leave to file sur-reply evidence.

[21] This request by Apotex was never addressed by Prothonotary Lafreniere. His order is completely silent on it. The abstract of the hearing quoted by Prothonotary Tabib makes it clear that he did not deal with the matter on the merits but rather felt that if required, Prothonotary Tabib would deal with it.

[22] However, Prothonotary Tabib refused to deal with it, considering it inappropriate and abusive that this matter was brought before her.

[23] This effectively put Apotex in a catch 22 situation. It followed the first alternative proposed by , Prothonotary Tabib on August 8, only to have Prothonotary Lafreniere fail to address the issue. It then turned to Prothonotary Tabib the case managing prothonotary , as per the guidance of Prothonotary Lafreniere, only to be denied a hearing. However it is now out of time to appeal the ruling of Prothonotary Lafreniere.

[24] Putting any other construction on the facts would be to suggest the practically inconceivable result that Prothonotary Lafrenière both considered and dismissed Apotex's request for permission to file sur-reply evidence (without making any reference to such dismissal in his order), and also referred the matter to Prothonotary Tabib (without any intention, that she actually consider the matter on its merits).

[25] Having set out the alternatives, the Prothonotary Tabib ought not suggest that using one of them is inappropriate. As case managing prothonotary she is responsible for seeing the issue of the request to file reply evidence is dealt with on the merits somewhere in the process.

[26] Reluctant as the Court is to interfere with a case managing prothonotary, this failure to deal with the motion on the merits, in my view is based on a wrong principle or amounts to a misapprehension of facts. It thus meets the test in Canada v. Aqua-Gem Investments Ltd. [1993] 2 F.C. 425 and obliges me to review the decision.

[27] Given that I am reviewing the decision of Prothonotary Tabib, the appeal from the decision of Prothonotary Lafreniere is clearly moot. Consequently the appeal from his decision will be dismissed.

Issue II

[28] Having found that I can review Prothonotary Tabib decision, I must now determine the substance of the motion she refused to hear.

[29] The Court has the discretion, pursuant to Rule 312 of the Federal Court Rules, to allow the filing of affidavits beyond those initially filed by the applicant and the respondent. The principles governing the application of Rule 312 are whether the additional material will:

a ) Serve the interests of justice;

b ) Assist the Court in making its final determination; and

c) Cause substantial or serious prejudice to the applicants.

See Eli Lilly & Co. v. Apotex Inc. (1997), 137 F.T.R. 226 at 230 (F.C.T.D.).

[30] The interest of justice will be served if the Court has all relevant information before it. As in this case no cross examination has yet occurred there is unlikely to be a delay as Dr. Cima can be cross examined on both his affidavits.

[31] In the case of AB Hassle v. Canada ( Minister of National Health and Welfare) 61C.P.R. (3^rd) 492 Rouleau J. stated:

I am satisfied that the application should be granted and Apotex permitted to file the affidavits in question. In Bayer AF v. Canada (Minister of National Health and Welfare) (1994), 58 C.P.R. (3d) 377 at p. 380, 83 F.T.R. 318, 50 A.C.W.S. (3d) 1177 (T.D.), MacKay J. made the following observations:

It is true Part V.1 rules do not specifically provide for affidavits to be filed in reply by an applicant or by a respondent. Nevertheless, in my view, this court has discretion to permit that where it will serve the interests of justice, will assist the court and will not seriously prejudice the other party.

That reasoning is equally applicable to the facts now before me. In prohibition proceedings such as these, it is imperative that the court have before it all relevant evidence so that an informed and reasoned decision can be rendered. Furthermore, as no cross-examinations have yet been held, I am unable to conclude that any prejudice will result to Hassle by the late filing of the affidavits.

[32] The Lindquist affidavit makes four general complaints in respect of the Cima 1, which complaints according to AstraZeneca will assist the Court in determining the issues raised in this proceeding. Cima 2 alleges that Dr. Lindquist's complaints rely upon a number of assumptions which are purely speculative and without validation. Surely the Cima 2 responses and the subsequent cross examination on all three affidavits will provide considerable assistance to the Court in properly understanding and analyzing the matters raised and discussed in the Lindquist affidavit.

[33] Consequently the test in Eli Lilly & Co. v. Apotex Inc., supra would appear to be satisfied.

[34] An order will issue setting aside paragraph 1 of the decision of Prothonotary Tabib and permitting Apotex to file Cima 2 as sur-reply.

[35] As each side effectively won one motion and lost the other, there will be no order as to costs.

"K. von Finckenstein"

JUDGE

Ottawa, Ontario

December 24, 2003

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: T-1878-02

STYLE OF CAUSE: AB HASSLE, ASTRAZENECA AB and ASTRAZENECA CANADA INC.

- and -

APOTEX INC. and THE MINISTER OF HEALTH

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: DECEMBER 15 and 17, 2003

REASONS FOR ORDER: von FINCKENSTEIN J.

DATED: DECEMBER 24, 2003

APPEARANCES:

Gunnars Gaikis

Scott Beezer FOR THE APPLICANT

Andrew Brodkin

Natalie Butterfield FOR THE RESPONDENT

SOLICITORS OF RECORD:

Smart & Biggar

Toronto, Ontario FOR THE APPLICANT

Goodmans LLP

Toronto, Ontario FOR THE RESPONDENT

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AB Hassle v. Apotex Inc., 2003 FC 1522

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