Docket: A-501-15
Citation: 2016 FCA 121
Present: STRATAS
J.A.
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BETWEEN:
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AMGEN CANADA
INC. AND AMGEN INC.
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Appellants
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and
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APOTEX INC. AND
THE MINISTER OF
HEALTH
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Respondents
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REASONS
FOR ORDER
STRATAS J.A.
[1]
Apotex Inc. has brought a motion for an order
dismissing this appeal as moot. The appellants, Amgen Canada Inc. and Amgen
Inc. have responded. In Amgen’s response, Amgen has raised an issue that Apotex
did not address. If supported by the evidence, that issue may well prompt the
Court to dismiss the mootness motion. But Apotex says that if it is permitted
to offer evidence in reply, that issue will be eliminated.
[2]
As we shall see, the Rules governing written
motions do not expressly allow for evidence to be offered in reply. So Apotex
has brought a motion within the mootness motion asking for leave to file this
evidence in reply. Amgen opposes, submitting, among other things, that Apotex
must satisfy the test for introducing fresh evidence on appeal. As is
well-known, that test is a very difficult one to meet: Palmer v. The Queen, [1980] 1 S.C.R. 759, 106 D.L.R. (3d) 212; Shire Canada Inc. v. Apotex Inc., 2011
FCA 10, 414 N.R. 270; Brace v. Canada, 2014 FCA 92.
[3]
For the following reasons, Apotex succeeds on
its motion and an order shall be issued on the terms described below.
[4]
These reasons will say little about the
particular facts of this appeal, the mootness motion, and the nature of Apotex’s
reply evidence. A sweeping confidentiality order covers this appeal and this
motion. In any event, a detailed description of the facts and evidence is
unnecessary.
A.
The Federal Courts Rules
[5]
A party bringing a motion in writing under Rule
369 must serve a motion record compliant with Rule 364. That motion record must
contain a notice of motion, evidence required for the motion and written
submissions or, in the case of motions falling under Rule 366, a memorandum of
fact and law.
[6]
A party responding to the motion must serve a
responding motion record compliant with Rule 365(2). That motion record must
contain evidence required for the motion and written representations or, in the
case of motions falling under Rule 366, a memorandum of fact and law.
[7]
Rule 369(3) provides that a moving party may
reply to a responding motion record by filing written representations in reply.
The Rule does not allow for reply evidence to be filed. Therefore, on a motion
in writing, a party must seek leave of the Court in order to file reply
evidence.
[8]
Although Rule 369(3) is silent on the matter,
the Federal Courts do have the jurisdiction to allow the filing of reply
evidence:
•
Rule 55 allows the court in “special circumstances” to vary or supplement a rule. In
certain cases, the need to file reply evidence can constitute a “special circumstance.”
•
Rule 3 requires the Rules to be interpreted and
applied to “secure the just, most expeditious and least
expensive determination of every proceeding on its merits.” Sometimes reply
evidence must be filed for reasons of procedural fairness and to ensure that
the Court has the evidence it needs to adjudicate a matter on the merits.
•
Rule 4—frequently called the “gap rule”—provides that where the Rules do not speak
to a procedure, we can look by analogy to other rules. As far as analogies are
concerned, Rule 312 allows for additional affidavits to be filed in
applications and, as a matter of procedure, reply evidence can be offered at
trials.
•
The Federal Courts have
certain plenary powers that allow it to regulate procedures: Canada (Human Rights Commission) v. Canadian
Liberty Net, [1998] 1 S.C.R. 626, 157 D.L.R. (4th) 385 at paras. 35-38; Philipos v. Canada (Attorney General),
2016 FCA 79 at para. 10; Canada (National Revenue) v. RBC Life Insurance
Company, 2013 FCA 50, 443 N.R. 378 at para. 36; Mazhero v. Fox, 2014
FCA 226 at para. 9. Procedural fairness and the need for the Court to have
sufficient evidence before it to adjudicate a matter on the merits can trigger
the use of plenary powers.
B.
The principles to be applied
[9]
Sometimes upon the filing of a responding motion
record on a motion in writing, new issues arise. Or sometimes the responding
motion record causes certain issues, understandably glossed over in the moving
party’s motion record, to assume markedly greater importance or to be
transformed.
[10]
In such circumstances, considerations of
procedural fairness and the need to make a proper determination can require the
Court to allow the filing of reply evidence in a motion in writing:
•
Procedural fairness. Sometimes a party has to be given the opportunity to file evidence
on an issue that it could not practically or meaningfully address earlier.
•
The need to make a proper determination. Where an issue in the motion might determine its outcome, sometimes
the Court must allow additional evidence to be filed so that it can decide that
issue on the basis of all proper and relevant facts, not just one side’s
version of the facts.
[11]
The filing of reply evidence on a motion is
permitted only in “unusual circumstances” where procedural
or substantive considerations such as these are live: Johnson & Johnson
Inc. v. Boston Scientific Ltd., 2009 FCA 155 at para. 2. But caution must
be exercised.
[12]
At trial, it is a well-known rule of evidence
that a plaintiff cannot split its case by adducing evidence on reply that is
merely confirmatory of the case in-chief: Allcock, Laight & Westwood
Ltd. v. Patten (1966), [1967] 1 O.R. 18. Instead, reply evidence must
relate to issues raised in the defence’s case that were not raised in the plaintiff’s
case in-chief: Halford v. Seed Hawk Inc., 2003 FCT 141 at paras. 14-15.
Further, there is good reason to restrict the admission of evidence on reply.
As Wigmore argued, allowing a wide range of evidence could be unfair to the
respondent who had supposed the case in chief would be the entire case to meet.
It could also create an unending alternation of successive fragments of the
case coming forward: John Henry Wigmore, Evidence in Trials at Common Law, revised
by James H. Chadbourn (Toronto: Little, Brown and Co, 1976) v. 6 at p. 672.
[13]
Much guidance can also be found in the case law
that has developed under Rule 312 concerning the admission of additional affidavits
in applications. Additional affidavits are permitted only where it is “in the interests of justice”: Atlantic Engraving
Ltd. v. LaPointe Rosenstein, 2002 FCA 503, 299 N.R. 244 at paras. 8-9. That
means that the Court must have regard to whether:
•
the evidence will assist the court (in
particular, its relevance and sufficient probative value);
•
admitting the evidence will cause substantial or
serious prejudice to the other side;
•
the evidence was available when the party filed
its affidavits or it could have been discovered with the exercise of due
diligence.
(Holy Alpha & Omega Church of Toronto
v. Canada (Attorney General), 2009 FCA 101 at para. 2; Forest Ethics
Advocacy Assn. v. National Energy Board, 2014 FCA 88 at para. 6; House
of Gwasslaam v. Canada (Minister of Fisheries & Oceans), 2009 FCA 25,
387 N.R. 179 at para 4.) I note that this Court has applied these same factors
in deciding whether a reply affidavit should be permitted to be filed in an
application for leave to appeal under Rule 355, a rule that, like Rule 369(3),
does not explicitly allow reply affidavits: Quarmby v. National Energy Board
of Canada, 2015 FCA 19.
C.
Adding conditions and making directions
[14]
Rule 53 gives the Court the discretionary power
to add any conditions to an order or make any directions that are just. On a
motion for leave to file reply evidence, the parties should make submissions on
whether, in light of the above considerations or in order to alleviate any
prejudice, the Court should add conditions or make directions. For example,
should provision be made for cross-examination of a deponent whose affidavit is
being offered in reply? Is this the sort of exceptional situation where
sur-reply evidence and associated cross-examinations are required? What is the
time limit for these procedural steps?
[15]
In exercising its discretion concerning
conditions and directions, the Court must keep front of mind the requirement
that proceedings generally—and motions in particular—must be conducted
efficiently and fairly. Here again, Rule 3 must be mentioned: proceedings and
motions are to be determined “on [their] merits”
but “just[ly]…expeditious[ly] and [in a way that is]
least expensive.”
[16]
Procedures leading up to any judicial
determination should be like a smooth highway leading directly to the
destination. When the Court has to make an order concerning procedures, it
should be nothing more than a small curve, not a set of potholes slowing
everyone down—or worse—a detour.
D.
Applying these principles to this case
[17]
The issue is whether Apotex should be permitted
to file reply evidence in the mootness motion and whether any conditions should
be added or directions made.
[18]
The issue is not whether Apotex should be
allowed to file new evidence on the appeal. Accordingly, the cases Amgen cites
(mentioned in para. 2 above), regarding the admission of fresh evidence on
appeal, are irrelevant.
[19]
In my view, the principles set out above support
making an order allowing Apotex to file reply evidence in the mootness motion.
[20]
To recap, the respondent’s motion record in the
mootness motion raises an issue that the moving party, Apotex, has not raised
in chief in its original motion record. For that reason, Apotex has not yet filed
evidence relevant to this issue. I am persuaded that the evidence Apotex
proposes to file—a brief affidavit— is relevant to this issue.
[21]
The need for the Court to make a proper
determination weighs heavily in this case. The issue raised by Amgen is material
and has the potential to affect the outcome of the mootness motion. If Apotex
is not permitted to file its reply evidence, the Court might decide the mootness
motion on an erroneous basis and work an injustice.
[22]
I have also considered carefully whether Apotex
should have been alert to the issue raised by Amgen and should have addressed
it in chief in its original motion record. On the facts of this case, I
consider this a close call. However, I am persuaded that the issue raised by
Amgen in its responding record is new or has achieved an importance that Apotex
could not have been reasonably anticipated when it filed its original motion
record.
[23]
In my view, an order allowing Apotex to file
reply evidence will not work procedural unfairness or prejudice to Amgen,
especially in light of the additional conditions I intend to impose.
[24]
I have also considered whether Apotex, in not
addressing the issue in chief, was engaging in the sort of unacceptable,
tactical conduct that courts cannot countenance, especially given the
litigation culture change prescribed by the Supreme Court of Canada in Hryniak
v. Maudlin, 2014 SCC 7, [2014] 1 S.C.R. 87. As was said in Apotex Inc. v. Bristol-Myers Squibb Company, 2011 FCA 34, 91 C.P.R. (4th) 307 at para. 37, “[t]hose
who disrespect the rules and their aims [set out in Rule 3] can hardly expect
courts to smile upon them when they look for a favourable exercise of
discretion under those rules”: see also
Pfizer Canada Inc. v. Apotex Inc., 2014 FCA 54, 117 C.P.R. (4th)
401 at para. 10. On this record, Apotex’s failure to deal fully with the issue
now raised by Amgen in its responding record cannot be said to be the product
of unacceptable tactics.
[25]
Amgen asks for the opportunity to cross-examine
the deponent of the reply affidavit Apotex files. This is fair. I will provide for
this in my order.
[26]
Amgen asks for the ability to file evidence on
the mootness motion by way of surreply. Given the narrowness of the issue being
addressed on reply, the narrowness of the reply evidence and Amgen’s ability to
put documents to the deponent on cross-examination, I am not convinced at this
time of the need for surreply evidence.
[27]
The narrowness of the issue being addressed on
reply and the brief nature of the reply evidence suggest that the
cross-examination will be brief and can be completed in the very near future.
[28]
After the cross-examination is completed or the
time for conducting a cross-examination has expired, Apotex shall file a reply record
containing the reply evidence, the transcripts of any cross-examination,
exhibits marked on the cross-examination, and any answers to undertakings.
[29]
For clarity and to ensure that there is no later
misunderstanding, the evidence in the reply record is admissible only on the
mootness motion, not the appeal.
[30]
In her discretion, the Judicial Administrator
may refer to me any motions to answer refused questions on cross-examination.
Upon the filing of the supplementary record, she may send the mootness motion to
me for determination.
E.
Disposition
[31]
Apotex’s motion to file reply evidence is
granted with conditions attached. An order shall issue in accordance with these
reasons. There shall be no costs of the motion.
“David Stratas”
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