Merck Frosst Canada v. Canada (Minister of Health), 2001 FCT 718

Date: 20010628

Docket: T-2280-00

Neutral Citation: 2001 FCT 718

BETWEEN:

                                               MERCK FROSST CANADA & CO.

                                                                          -and-

                                                           MERCK & CO., INC.

                                                                                                                                           Applicants

                                                                         - and -

                                        THE MINISTER OF NATIONAL HEALTH,

                                                                          -and-

                                                                  APOTEX INC.

                                                                                                                                      Respondents

                                                        REASONS FOR ORDER

DUBÉ J.:

[1]                The applicants ("Merck") seek an order varying the order of Prothonotary Morneau rendered June 13, 2001, to the effect that Merck is not entitled to file and serve a draft affidavit of Dr. Wuest on the ground that Merck was ready to proceed on June 4, 2001, with its record "as it stands now" and that it shall proceed on June 18, 2001, with its record as it stands.

[2]                Under Rule 399(2)(a) the Court may set aside or vary an order by reason of a matter that arose or was discovered subsequent to the making of the order. In Saywack v. Canada (Minister of Employment and Immigration), [1986] 3 F.C. 189, 27 D.L.R. (4^th) 617 (C.A.), the Federal Court of Appeal held that to obtain such a relief an applicant must establish that the new matter was discovered subsequent to the judgment impugned, could not with reasonable diligence have been discovered sooner, and is of such character that if it had been brought forward in the action it would have altered the judgment.

[3]                In the instant case, the new matter is that on June 14, 2001, the day following the Prothonotary's order, the respondent ("Apotex") informed counsel for Merck that it intended to serve four responding affidavits and expected that Merck would wish to cross-examine on these affidavits. At the time of the order of Prothonotary Morneau, neither Merck nor the Court were aware of the intention of Apotex to file four responding affidavits necessitating cross-examinations. Had this intention been brought to the attention of the Prothonotary, it would obviously have affected his expressed concern that the matter not be further adjourned: it had to be, in any event, because of the subsequent filing by Apotex.

[4]                However, in all fairness to Apotex, it will be allowed to file its own affidavit in response to the Wuest affidavit. The time schedule will have to be amended to accommodate cross-examinations on both affidavits.

[5]                Consequently, as I indicated at the conclusion of the hearing, the order sought is granted with costs in the cause.

OTTAWA, Ontario

June 28, 2001

                                                                                                                                                   Judge