Smithkline Beecham Pharma Inc. v. Apotex Inc., docket T-677-99

Date: 19990903

Docket: T-677-99

BETWEEN:

     SMITHKLINE BEECHAM PHARMA INC.

and SMITHKLINE BEECHAM P.L.C.

     Applicants

     and

APOTEX INC. and

     THE MINISTER OF HEALTH

     Respondents

     REASONS FOR ORDER AND ORDER

BLAIS J.

[1]      This is a motion for an order granting leave to the applicants to file further evidence within seven days of the date of this order.

[2]      The respondent Apotex has already agreed that the applicants should be allowed to file further evidence.

[3]      The parties have also agreed that the scope of this new evidence should be limited.

[4]      Paragraph 5 of the motion, at page 3, has identified the general scope of this further evidence and the applicants have asked that the scope should be to respond to the affidavit of Eli Shefter sworn June 18, 1999, paragraphs 8-24 and the affidavit of Gilbert Banker sworn June 18, 1999, paragraphs 6-13.

[5]      The applicants also request that they should be allowed to file three affidavits including one affidavit of Dr. Roman to respond to the new issues of fact and law that are contained in the affidavits of Eli Shefter and Gilbert Banker, and constitute portion of the respondent Apotex" evidence.

[6]      Counsel for the respondent Apotex suggests that he is not really concerned with the scope but that the applicants" response should be limited to one affidavit by Dr. Roman, relying for that on various jurisprudence.

[7]      Counsel for the respondent Apotex also suggests that he should be entitled to file evidence last and should be allowed to respond to the evidence filed by the applicants.

[8]      On this particular point, counsel for the applicants suggest that the respondent Apotex has the opportunity to cross-examine on those affidavits that would be filed and the respondent Apotex should not be entitled to file new evidence to respond to those affidavits.

[9]      The parties have agreed on a schedule depending the decision of the tribunal.

[10]      I am convinced that the applicants should be entitled to file new evidence.

[11]      I am also convinced that the scope identified by the applicants on their motion is right and the applicants should be limited to that scope.

[12]      I have carefully reviewed the affidavits in support of the originating notice of motion and the evidence filed by the respondent Apotex. I am satisfied that the applicants could not anticipate the entire contents of the evidence given in the statement filed in the notice of allegation.

[13]      The applicants have asked to file three affidavits to respond to the scope already identified. I do not see any reasons why I should limit the applicants to one affidavit if the applicants need to file three affidavits to respond. Doing otherwise, would be unfair to the applicants.

[14]      The respondent Apotex would have the opportunity to cross-examine the three affiants on their affidavits, if necessary.

[15]      Counsel for the respondent Apotex suggests that the respondent Apotex should have the last word in this proceeding. I disagree with this suggestion because the respondent Apotex had the responsibility to identify clearly in his notice of allegation the prior art it was referring to. It decided to reduce the scope of its notice of allegation and to add new issues of facts and law in the affidavits filed in response to the notice of application.

[16]      In my view, it is not appropriate to allow the respondent Apotex to file new evidence to respond to those three affidavits because those three affidavits are responding to the respondent Apotex" affidavits and the scope is very limited.

[17]      For those reasons, the motion is granted.

[18]      The applicants are allowed to file further evidence pursuant to the agreed schedule established by the parties:

[19]      The scope of the affidavits in response shall be limited to paragraphs 8-24 of the affidavit of Eli Shefter sworn June 18, 1999 and paragraphs 6-13 of the affidavit of Gilbert Banker sworn June 18, 1999.

[20]      Costs in the cause.

                         Pierre Blais

                         Judge

OTTAWA, ONTARIO

September 3, 1999