Date: 20051129
Docket: A-332-05
Citation: 2005 FCA 397
CORAM: RICHARD C.J.
LÉTOURNEAU J.A.
MALONE J.A.
BETWEEN:
APOTEX INC.
Appellant
(Applicant)
- and -
THE MINISTER OF HEALTH
Respondent
(Respondent)
Heard at Ottawa, Ontario, on November 29, 2005.
Judgment delivered from the Bench at Ottawa, Ontario, on November 29, 2005.
REASONS FOR JUDGMENT OF THE COURT BY: RICHARD C.J.
Date: 20051129
Docket: A-332-05
Citation: 2005 FCA 397
CORAM: RICHARD C.J.
LÉTOURNEAU J.A.
MALONE J.A.
BETWEEN:
APOTEX INC.
Appellant
(Applicant)
- and -
THE MINISTER OF HEALTH
Respondent
(Respondent)
REASONS FOR JUDGMENT
(Delivered from the Bench at Ottawa, Ontario, on November 29, 2005)
RICHARD C.J.
[1] This is an appeal by Apotex Inc. of an order of Justice François Lemieux of the Federal Court upholding an order of Prothonotary Mireille Tabib denying Apotex's request for leave to file a supplementary affidavit under Rule 84 (2) of the Federal Courts Rules, in support of its motion to compel the Minister of Health to comply with an order made by Justice Yvon Pinard of the Federal Court on June 2, 2004.
[2] In her decision the Prothonotary reviewed a number of factors and concluded that the proposed evidence was not relevant and that the information at issue could have been introduced by the Appellant in its earlier affidavit. She also noted that though the Respondent did not allege prejudice, that in itself did not counter-balance her other findings. In these circumstances, the Prothonotary concluded that the proposed new evidence would not be of assistance to the Court and thus serve the interest of justice.
[3] Since the prothonotary's order does not raise a question vital to the final issue of the case, Justice Lemieux correctly proceeded to determine whether her order was clearly wrong (see Merck & Co., Inc. v. Apotex Inc. [2004] 2 F.C.R. 459 at paragraph 19, 2003 FCA 488; leave to appeal refused May 6, 2004, Doc. 30193 (S.C.C.)).
[4] Mr. Justice Lemieux carefully reviewed the Prothonotary's decision and found no reason to intervene.
[5] In support of its motion to introduce the affidavit, the Appellant relied heavily on the absence of any claim of prejudice by the Respondent. However, this is but one factor to be considered and by itself is not determinative. It does not trump all other factors.
[6] The appellant has failed to demonstrate that Mr. Justice Lemieux made any reviewable error and accordingly the appeal will be dismissed with costs.
"J. Richard"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-332-05
STYLE OF CAUSE: Apotex Inc. v. The Minister of Health
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: November 29, 2005
REASONS FOR JUDGMENT OF THE COURT BY: Richard C.J., Létourneau and Malone J.J.A.
DELIVERED FROM THE BENCH BY: Richard, C.J.
APPEARANCES:
| Mr. Andrew Brodkin
Ms. Katherine Cornett
|
FOR THE APPELLANT/
|
| Mr. Frederick Woyiwada
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
| Goodmans LLP
Toronto, Ontario
|
FOR THE APPELLANT/
|
| John Sims
Deputy Attorney General of Canada
Ottawa, Ontario
|
FOR THE RESPONDENT
|
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