Date: 19980722
Docket: T-2201-97
BETWEEN:
ABBOTT LABORATORIES, LIMITED and
ABBOTT LABORATORIES
Applicants
AND:
NU-PHARM INC. and
THE MINISTER OF HEALTH CANADA
Respondents
REASONS FOR ORDER
ROULEAU, J.
[1] This matter came before me at Ottawa on July 21, 1998. A brief history of the proceedings is necessary in order to explain the various delays involved as well as to properly situate this application.
[2] In October of 1997, the applicants had sought an order prohibiting the Minister from issuing a Notice of Compliance. Shortly thereafter, the respondents produced their Notice of Allegation which was, to say the least, very brief and contained sparse elaboration. The applicants had initially filed their affidavit evidence as required by the rules following which the respondents filed the affidavit of one Dr. Robert McClelland in response and in support of their allegations.
[3] In November of 1997, a motion brought by the applicants came before me and I was satisfied that an exception to the regulation was warranted. I allowed the applicants to file reply affidavits to Dr. McClelland's evidence in light of the fact that it would have been impossible for the applicants to anticipate what had been asserted in the affidavit in support of the allegation of the respondents. I allowed the applicants to December 19, 1997 to file reply affidavits. They complied and three expert affidavits were submitted which included one from Dr. Guillory which was very extensive and included results from a number of tests he had conducted together with an elaborate opinion. In order to balance the litigation, I also provided the respondents with an opportunity to reply by way of affidavit and allowed them until January 9, 1998. This was subsequently extended by order to January 18, 1998. The respondents complied by filing a further affidavit by Dr. Robert McClelland in response to applicants' evidence dated December 18, 1997. I allowed the application in order that the best evidence would be available to the judge who would eventually hear the application on the merits.
[4] Subsequently, a considerable number of motions by both parties were entertained by this Court; one in particular, I felt, was needless and helped underline the antagonistic relationship that seemed to have evolved between opposing counsel. In my order of November 27, 1997, I had failed to take into account the fact that, having extended the time to produce affidavit material to both parties, I did not amend the dates for filing Motion Records. It became necessary for the applicants to come to the Court, without the consent of the respondents, to seek an order permitting the late filing of their Motion Records.
[5] Eventually, on June 23, 1998, the applicants filed their Motion Record.
[6] On May 21, 1998, the respondents cross-examined Dr. Guillory on his affidavit of December 18, 1997 and, as a result of matters disclosed, this motion dated July 13, 1998 came before me. It is alleged that the cross-examination of Dr. Guillory revealed factual matters that were now raised for the first time and the respondents are seeking leave of the Court to file a third affidavit of Dr. McClelland which is some 62 pages in length.
[7] The grounds argued in support of the respondents' application was to the effect that transcripts of the cross-examination of Dr. Guillory on his affidavit sworn December 18, 1997 and which was conducted on or about May 21, 1998, revealed factual matters that were raised for the first time during the course of the cross-examination of the applicants' affiant. It is argued by counsel for the respondents that they should be allowed to file a further and better affidavit of their expert witness Dr. McClelland in order to rebut or clarify these so-called new matters.
[8] It was also submitted that the Court had been lenient and indulgent towards the applicants in previous proceedings; that to allow further reply affidavit would not prejudice the applicants and would better serve the ends of justice since all pertinent evidence should be made available when the matter is to be determined on the merits; it is a very a very complex matter which is to be resolved on affidavit material only.
[9] As I read through the various proceedings entertained by this Court, it is my view that no special privileges have been granted these applicants. This was raised by the respondents in argument. I have reviewed the various proceedings and I am satisfied that no special privileges have been extended to the applicants. If anything, they have responded efficiently when one considers that this matter was only initiated in October of 1997 and, even though there have been some extraordinary steps taken in this proceeding, they have on June 23 of this year filed their Motion Record including their argument on the facts and law.
[10] I am also satisfied that what is being complained of as being a surprise or new factual matters discovered as a result of cross-examination of Dr. Guillory had been previously referred to with sufficient particularity in his report which was part of his affidavit sworn December 18, 1997 and filed with the Court on that date. Page one of his report and more particularly paragraph 3 thereof, and assertions disclosed therein, was more than ample notice to the respondents' experts as to the opinions which were being expressed by the applicants' experts in reply to the assertions of the respondents. They had ample opportunity when filing the second affidavit of their expert, Dr. McClelland, sworn January 18, 1998 to provide an adequate response. They were granted a full month to complete an analysis of Dr. Guillory's evidence before providing the applicants with the second reply affidavit of Dr. McClelland. He could have anticipated from Dr. Guillory's affidavit the evidence he should assert in order to criticize the analysis of the applicants' expert and provide the necessary rebuttal in order to support the respondents' non-infringing process.
[11] Judicial review and more particularly the patent medicines regulations require that these applications are to be conducted summarily and expeditiously. To allow the respondents to file a third affidavit from the same expert containing some 62 pages will not contribute in any way to a better understanding or clarification of the issues. As noted earlier, the applicants have filed their Motion Record on June 23, 1998. To allow the respondents this further late filing would cause prejudice to the applicants even though the responsents suggest I extend them the courtesy of a further reply.
[12] The respondents submitted much jurisprudence but, as I read these decisions, they do not provide support for the respondents that I should allow a further exemption under the judicial review rules in order to file a third reply affidavit. Much of the jurisprudence cited relates to applications to extend time to file an affidavit or a supplementary affidavit. As advanced by the respondents, the Court has the discretion to permit some deviation. Nevertheless, it should be remembered that this discretion should be exercised with great caution, only when the interests of justice are to be served, to further assist and Court and if in some cases it could seriously prejudice one or the other party. I am satisfied that no relevant evidence will be excluded by denying this motion.
[13] The application is dismissed. Costs to the applicants in any event of the cause.
[14] Malgré le fait que l'audience a eu lieu dans les deux langues officielles, toute la plaidoirie au dossier est dans la langue anglaise et dans le but d'être aussi expéditif que possible je n'ai rédigé mes motifs que dans la langue anglaise. Une traduction sera effectuée éventuellement.
JUDGE
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