Date: 20030204
Docket: T-2288-01
Neutral citation: 2003 FCT 119
Toronto, Ontario, Tuesday, the 4th day of February, 2003
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
APOTEX INC.
Applicant
- and -
THE MINISTER OF HEALTH,
GLAXOSMITHKLINE INC.
Respondents
REASONS FOR ORDER AND ORDER
[1] This is a motion from the respondent GlaxoSmithKline Inc. ("Glaxo") for an order requiring Dr. Bernard Sherman re-attend for cross-examination within 20 days of this Order to answer questions which were refused or taken under advisement during his cross-examination on September 19, 2002.
FACTS
-
- The underlying application was commenced on December 27, 2001 against the Minister of Health. The applicant is seeking an order for mandamus and a number of declarations with respect to the propriety of the listing of certain patents on the Patent Register by the Minister pursuant to the Patented Medicines (Notice of Compliance) Regulations and the effect of their listing on Apotex's submission for a Notice of Compliance ("NOC"). Glaxo brought a motion on consent to be added as a party. The requested was granted by an Order issued February 18, 2002. As the time for filing the respondent's evidence had passed by that date, the Order also set out a schedule for the filing of Glaxo's evidence and the subsequent cross-examinations to be completed by June 19, 2002.
[3] Rather than file its evidence, Glaxo brought a motion to dismiss the proceedings. Its motion was dismissed on May 7, 2002. Glaxo appealed and the appeal was dismissed on May 28, 2002. Glaxo obtained an order dated June 13, 2002 allowing it to file its evidence and extending the period of cross-examination until September 11, 2002. By a motion filed September 18, 2002, Glaxo sought to cross-examine the Minister's deponent. This request was refused on September 30, 2002. Glaxo appealed, and this appeal is pending before the Federal Court of Appeal.
[4] Dr. Sherman was cross-examined on his affidavit on September 19, 2002. He refused to answer seventeen of the respondent's questions and took four other questions "under advisement." Counsel for Glaxo did not take any action with respect to these seventeen refusals or four questions under advisement until this motion was filed on January 13, 2003, i.e. four months later. The ordinary practise of counsel would be to send a letter to Apotex setting out the seventeen questions which were refused and the four questions which were taken under advisement, and advising Apotex that a motion will be brought to compel answers to these questions if they are not forthcoming within a fixed period of time such as two weeks.
[5] On November 22, 2002, a Notice of Status Review was issued, requiring Apotex to show cause why the application should not be dismissed for delay. By an Order dated January 3, 2003, the proceeding was allowed to continue and a schedule was set for the remaining steps of the application. Apotex was required to file its Application Record no later than January 13, 2003 and the respondents were ordered to file their records by January 20, 2003. Glaxo did not object to the schedule or object that one of the remaining steps of the application was these answers by Apotex to the outstanding questions from the cross-examination of Dr. Sherman on September 19, 2002.
[6] On January 13, 2003, Glaxo brought this motion seeking answers to the questions refused by Dr. Sherman on his cross-examination.
ANALYSIS
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- This motion has been brought outside of the time frame granted by the September 30, 2002 Order for the completion of cross-examination. Therefore, before considering the merits of the application, the Court must determine whether Glaxo is entitled to an extension of the time for cross-examination. The underlying consideration on an application to extend time is that justice be done between the parties, see Grewal v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 263 (C.A.). The relevant considerations in this case are whether Glaxo has provided a reasonable explanation for the delay and whether any prejudice would result from the delay.
[8] The onus is on the moving party to justify its delay in bringing the motion, see Pfizer Canada Inc. v. Apotex Inc. (1996), 67 C.P.R. (3d) 423 at 425 (F.C.T.D.). Glaxo states that the delay was initially due to representations by counsel for Apotex during the cross-examination that they would investigate or consider certain matters. It contends that following the Notice of Status Review, it was not possible for it to file further documents with the Court pending the decision in the status review.
[9] Apotex submits that Glaxo has already caused the period for conducting cross-examinations to be extended three times and has provided no reasonable explanation for its unreasonable delay in bringing the motion. Glaxo has waited for four months to bring this motion and until its filing gave no indication of any intention to bring such a motion. In particular, when served with Apotex's submission on the Status Review on December 6, 2002, which included a proposed schedule for further steps in this proceeding, Glaxo made no representation that any further steps of any further extension of the schedule would be necessary.
[10] Apotex has directed the Court's attention to the decision of Prothonotary Lafrenière in AstraZeneca AB and AstraZeneca Canada Inc. v. Apotex Inc., (23 October 2002), Doc. T-148-02, wherein he denied a similar request due to a delay of seven weeks. The applicants in that case argued that they had taken no steps to bring the motion at an earlier date because they were awaiting answers to matter taken under advisement and the advice of an expert with respect to bringing the motion. This explanation was rejected by Prothonotary Lafrenière.
[11] Another relevant decision is that of Mr. Justice Evans in Eli Lilly and Co. v. Abbott Laboratories, Ltd., [1999] F.C.J. No. 466 (T.D.) (QL), which also involved a motion for re-attendance to complete cross-examination that was brought four months after the time for cross-examination had elapsed. The applicants cited settlement discussions and a letter from counsel correcting the deponent's evidence on one item. Mr. Justice Evans held that this explanation did not meet the test set out in Chin v. Canada (Minister of Employment and Immigration) (1993), 69 F.T.R. 77 (F.C.T.D.), where Madam Justice Reed stated that in order to justify a failure to comply with a time limit under the Federal Court Rules, 1998, the reasons would have to be "beyond the control of counsel or the applicant, for example, illness or some other unexpected or unanticipated event."
[12] Likewise, the explanation given by Glaxo in this case is insufficient to justify a four month extension of time. Its explanation is not reasonable or credible. Moreover, Glaxo's failure to object to the proposed schedule submitted by Apotex on December 6, 2002 undermines any credible explanation for delay. To borrow the words from Madam Justice Reed, Glaxo has not provided reason for the delay which is beyond the control of counsel. And to use the words of Mr. Justice Strayer in Nu-Pharm Inc. v. Canada (Attorney General) (1994) 56 C.P.R. (3d) 445 (T.D.) at page 448:
... the material does not, however, provide a reasonable explanation for the delay. By its own claim, the applicant did not start to prepare its Application Record until "early March", over a month after the Application Record should have been filed. There is no suggestion in the material that the delay was due to any unforseen crisis or impossibility: it was simply because counsel for the applicant thought it appropriate to wait for the filing of affidavits from adverse parties...
i.e. Glaxo has no reasonable explanation for delay.
[13] The underlying dispute between the parties in this case has been ongoing for many years. The respondent Glaxo has brought many applications and motions before this Court with respect to the matter, including an outstanding appeal at the Federal Court of Appeal from an interlocutory Order of Mr. Justice Beaudry, and an outstanding application for leave to appeal to the Supreme Court of Canada from a Judgment of the Federal Court of Appeal dismissing Glaxo's appeal from a decision of Mr. Justice Gibson on a related application between the parties. These delays are to the prejudice of Apotex and to the benefit of Glaxo. This Court does not condone delays without a reasonable explanation.
[14] For these reasons, this motion will be dismissed and the respondent Glaxo has four days from the date of this Order, as the parties agreed upon, for the filing of its record.
ORDER
THIS COURT HEREBY ORDERS THAT:
1. This motion for an order requiring Dr. Bernard Sherman re-attend for cross-examination is dismissed.
2. The respondent Glaxo shall file its record within four days of this Order.
3. Costs of this motion shall be in the cause between the applicant and the respondent Glaxo.
"Michael A. Kelen"
J.F.C.C.
FEDERAL COURT OF CANADA - TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET NO.: T-2288-01
STYLE OF CAUSE: APOTEX INC.
Applicant
- and -
THE MINISTER OF HEALTH,
GLAXOSMITHKLINE INC.
Respondents
DATE OF HEARING: MONDAY, FEBRUARY 3, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: KELEN J.
DATED: TUESDAY, FEBRUARY 4, 2003
APPEARANCES BY: Ms. Julie Perrin
For the Applicant
Mr. James Mills
Ms. Chantal Saunders
For the Respondent,
GlaxoSmithKline Inc.
No appearance
For the Respondent,
Minister of Health
SOLICITORS OF RECORD: GOODMANS LLP
Barristers & Solicitors
250 Yonge Street
Suite 2400, Box 24
Toronto, Ontario
M5B 2M6
For the Applicant
GOWLING LAFLEUR HENDERSON LLP
160 Elgin Street
Suite 2600
Ottawa, Ontario
K1P 1C3
For the Respondent,
GlaxoSmithKline Inc.
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent,
Minister of Health
FEDERAL COURT OF CANADA
Date: 20030204
Docket: T-2288-01
BETWEEN:
APOTEX INC.
Applicant
- and -
THE MINISTER OF HEALTH,
GLAXOSMITHKLINE INC.
Respondents
REASONS FOR ORDER
AND ORDER
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