Date: 20070214
Dockets: T-768-06
Citation: 2007
FC 170
Toronto, Ontario, February
14, 2007
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
PFIZER CANADA INC. and PFIZER
INC.
Applicants
and
THE MINISTER OF HEALTH and
COBALT PHARMACEUTICALS INC.
Respondents
REASONS FOR ORDER AND ORDER
[1]
These
Reasons and Order deal with a motion made before me on Monday, February 12,
2007, at the outset of a hearing of two other motions, to permit the Applicants
to file as part of their Record in the lengthier motion dealing with Canadian
Patent 2,355,493 an affidavit of Navrish Dhanao affirmed December 11, 2006. At
the hearing I indicated that the motion would be dismissed and the Dhanoa
affidavit not admitted in evidence with brief reasons to follow. These are those
reasons.
[2]
Two
proceedings T-768-06 and T-899-06 have essentially proceeded together. They
are both proceedings brought under the Patented Medicines (Notice of
Compliance) Regulations, SOR/93-133 as amended (NOC Regulations). The
Applicants are the same, the Minister of Health is a Respondent in both. Both
include the same patents. The other Respondent, a generic drug company known
as a second party in the NOC Regulations, is different in each, Cobalt Pharmaceuticals
Ltd. in T-768-06 and Pharmascience Inc. in T-899-06.
[3]
In each proceeding
a schedule for the filing of affidavits and cross-examination was agreed to by
the parties and made the subject of a Court Order. The cross-examination of
one of the Pharmascience witnesses had been completed before Counsel for the
Applicant, through apparent inadvertence, noticed that the Affidavit of Dhanoa,
which had not yet been affirmed, was not part of the Record. Counsel for the
Applicants sought the consent of the Counsel for the Respondents, Cobalt and
Pharmascience, as to the filing of the affidavit and that was refused. Hence
the motion.
[4]
Applicants’
Counsel concedes that the Dhanoa affidavit is late, it was tendered after the
date for the filing of affidavits had past, set by the undertakings between Counsel,
subsequently embodied in an Order. It was tendered after cross-examination of an
opposite party’s witnesses had begun. The only excuse offered as to lateness
was inadvertence of Applicants’ Counsel.
[5]
Rule 312
gives the Court a discretion to allow the filing of additional affidavit
evidence in an appropriate circumstance. In Merck Frosst Canada & Co.
v. Canada (Minister of Health) (2003), 25 C.P.R (4th)
56 this Court set out a number of criteria to be considered in granting leave
to file such material:
1.
Could the
evidence have been anticipated earlier;
2.
Will the
evidence be of assistance to the Court in making its final determination;
3.
Would
refusal to do so cause substantial prejudice to the tendering party;
4.
Will it
serve the interests of justice; and
5.
Will it
cause unreasonable delay.
[6]
In respect
of the present matter it is clear from paragraph 5 of the Affidavit of Zimmerman
supporting the Applicants’ motion, that the Dhanoa Affidavit was earlier
contemplated, and in fact it was only Counsel’s inadvertence that precluded it
from being filed in time. This is a factor supporting a refusal to allow it in
now.
[7]
As to the
usefulness of the Dhanoa Affidavit, Dhanoa is a student-at-law in the offices
of the Applicants’ solicitors. Dhanoa apparently telephoned a publishing house
and received from them information as to the date of publication of a
scientific article by Zhang. Dhanoa also went to CISTI, a Canadian document
delivery service and procured a copy of a sticker bearing an apparent date of
receipt of the Zhang article by that service. This evidence is hearsay. No
reason was given as to why direct evidence from the publisher or from CISTI
could not have been procured. Cross-examination of Dhanoa would be largely
futile.
[8]
While Rule
81 permits hearsay evidence to be adduced in affidavits an adverse inference
can be drawn from a failure to provide evidence from those having personal
knowledge.
[9]
Further,
the Dhanoa evidence is from a student-at-law in the office of the solicitors
and Counsel for the Applicants. Rule 82 of this Court forbids a solicitor from
arguing a matter based on his or her affidavit without leave of the Court. In Cross-Canada
Auto Body Supply (Windsor) Ltd. v. Hyundai Auto Canada, [2006] F.C.J. No. 539 the
Federal Court of Appeal held that it was improper for a solicitor to proceed to
argue a motion where a member of his or her firm had given an affidavit. While
the Court has, as permitted by Rule 82, allowed a solicitor to argue a matter
where the affidavit is non-controversial, if it is other than that, the
affidavit is inadmissible or other Counsel should argue the matter.
[10]
Here, the
affidavit, being hearsay and questionable as to admissibility given it was from
a member of Applicants’ counsel’s firm, the probative value would be low. It
must be remembered that what is under consideration is the evidence tendered
and not the point to be made from the evidence. If the evidence is weak then,
regardless of the point to be argued from it, there is less reason to permit it
to be filed late.
[11]
In any
event, the point to be made, the publication date of the Zhang article, at the
end of the day, made no difference to the arguments as presented in oral
argument on the other motions.
[12]
Therefore,
the motion to permit the filing and addition to the Record of the Dhanoa
affidavit is dismissed with costs.
ORDER
FOR THE REASONS PROVIDED HEREIN:
THIS COURT ORDERS that:
1.
The motion
to permit the filing and adding to the Record of the Dhanoa affidavit is
dismissed; and
2.
The
Respondent, Cobalt, is entitled to its costs.
“Roger T. Hughes”
Email this Content