Docket:
T-1555-12
Citation: 2013 FC 1249
Ottawa, Ontario, this 13th
day of December 2013
PRESENT: The Honourable Mr. Justice Roy
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BETWEEN:
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PFIZER CANADA INC.
and G.D. SEARLE & CO.
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Applicants
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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 AND ORDER
[1]
The applicants (collectively “Pfizer”) appeal
the order of Prothonotary Kevin R. Aalto of November 14, 2013 which denied, to
a large extent, their request that they be allowed to file two affidavits in
sur-reply.
[2]
If these affidavits were allowed, they would
constitute the fifth wave of affidavits in these proceedings that are meant to
be summary in nature. In response to a Notice of Allegation by the respondent
Apotex Inc. (“Apotex”), Pfizer issued its Notice of Application on August 16,
2012 in order to prohibit the Minister of Health from issuing a Notice of
Compliance. The first four waves of affidavits occurred in the following way:
- 15 January 2013 Pfizer
serves affidavits of Dr. Karen Seibert and Dr. Manuela Berger;
- 29 April 2013 Apotex serves the affidavits
of Dr. Gurkirpal Singh, Dr. McCarthy and Dr. Curt Furberg (a fourth
affidavit was served the same day);
- 6 August 2013 Pfizer serves the affidavits of
Dr. Michael Brian Fennerty, Dr. Steven B. Abramson and Dr. Peter Tugwell
(together with two other affidavits not relevant to the matter before this
Court);
- 11 October 2013 in accordance with an order of
this Court, Apotex is allowed to serve and file reply evidence in the form of
affidavits of Dr. Singh and Dr. Furberg.
[3]
The context in which this motion is to be
considered has some importance. In a previous order, Prothonotary Aalto, as the
Case Management Judge, was lamenting the fact that this case had been made more
complicated than needed because the evidence is presented on a “partial
reversal” basis. In that order of October 11, last, we can read:
[3] This
is particularly so in the context of a partial reversal of evidence which has
led to the mischief in this case. The Applicants (Pfizer) delivered its fact
evidence in support of the patent in suit first, followed by the Respondent’s
(Apotex) evidence on validity, followed by Pfizer’s evidence on validity. The
mischief which has arisen is that the Pfizer experts have now relied on an
extensive number of clinical studies, monographs and other documents which
Apotex argues are facts and should have been disclosed as part of the “fact”
evidence.
[4]
I believe it is fair to say that the
Prothonotary took a rather dim view of the approach taken by Pfizer as it dealt
with Apotex’s attempt to strike substantial segments of the three Pfizer
affidavits of August 6. The October 11, 2013 order was concerned with striking
large portions of affidavits presented on behalf of Pfizer because they were
seen as splitting the case. Pfizer on the other hand argued that the partial reversal
was the reason for the confusion as it was unclear what the first wave of
affidavits was to cover.
[5]
Very sensibly in my view, the managing judge refused
to strike most of the affidavits, but recognized that a solution had to be
found to allow Apotex a response in view of the fact that most of Pfizer’s case
came in its second wave of affidavits. The solution chosen was to allow Apotex
to serve reply affidavits in response to Pfizer’s second wave.
[6]
The Case Management Judge ordered costs on a
substantial indemnity basis in favour of Apotex, as well as reasonable legal
costs and disbursements in preparing and serving what became Apotex’s second
wave of affidavits, its reply affidavits.
[7]
It is in sur-reply to these affidavits, the
second wave of Apotex affidavits, that Pfizer wishes to serve and file two more
affidavits, those of Dr. Fennerty and Dr. Abramson. It seems that Pfizer is
content to leave the refusal of Prothonotary Aalto to allow an additional
affidavit by Dr. Tugwell to stand as no appeal of that refusal was launched.
[8]
Prothonotary Aalto’s order denied leave to file Dr.
Fennerty’s sur-reply affidavit altogether and paragraphs 2 to 9 of Dr. Abramson’s
affidavit. That would leave only one paragraph standing, as paragraph one of
Dr. Abramson’s affidavit is merely introductory.
[9]
Additional affidavits may be filed if leave is
granted by the Court (Rule 312 of the Federal Courts Rules, SOR/98-106).
The test applied in those circumstances, and used in this case, may not be
particularly illuminating, but it serves as a framework in order to make those
decisions on a case-by-case basis. I quote from Atlantic Engraving Ltd. v
Lapointe Rosenstein, 2002 FCA 503, 23 CPR (4th) 5:
[8] .
. . By exception, rule 312 allows a party, with leave of the Court, to file
additional affidavits. Under that rule, the Court may allow the filing of
additional affidavits if the following requirements are met:
i) The evidence
to be adduced will serve the interests of justice;
ii)
The evidence will assist the Court;
iii)
The evidence will not cause substantial or
serious prejudice to the other side . . .
[9] Further,
an applicant, in seeking leave to file additional material, must show that the
evidence sought to be adduced was not available prior to the cross-examination
of the opponent’s affidavits. Rule 312 is not there to allow a party to
split its case and a party must put its best case forward at the first
opportunity . . .
(citations
omitted)
It is now
recognized that the test applies to matters like those in this case (Pfizer
Canada Inc. v Canada (Minister of Health), 2006 FC 984, [2007] 2 FCR 371).
[10]
In order to succeed, Pfizer must satisfy the
standard of review on appeal of discretionary decisions of prothonotaries.
Appeals of those decisions are governed by Rule 51 and Pfizer will be
successful only if it satisfies the Court of one of two things: the question is
vital to the final issue of the case or the order is “clearly wrong, in the
sense that the exercise of discretion by the prothonotary was based upon a
wrong principle or upon a misapprehension of the facts” (per MacGuigan JA in Canada
v Aqua-Gem Investments Ltd., [1993] 2 FC 425, and slightly modified in Merck
& Co. v Apotex Inc., [2004] 2 FCR 459).
[11]
It must also be noted that the order under
appeal was made by the Case Management Judge who should be afforded “elbow
room”. After all, case management judges are much more familiar with the
proceedings that they have been managing than a judge sitting on appeal (Microfibres
Inc. v Annabel Canada Inc., 2001 FCT 1336; 16 CPR (4th) 12).
[12]
Pfizer does not argue that the Prothonotary’s order
is vital to the final issue of the case. It follows that the applicant contends
only that Prothonotary Aalto based his appreciation of the four requirements
for additional affidavits on a wrong principle or upon a misapprehension of the
facts such that the Prothonotary was clearly wrong. Pfizer’s burden is not made
any lighter given that if leave were to be granted, this would constitute its
third wave of affidavits. A party must put its best case forward at the first
opportunity.
[13]
With great respect, I cannot find fault with the
Prothonotary’s assessment of the requirements of Rule 312. I have read the
Apotex affidavits filed as its second wave, the same wave Pfizer seeks to
“counter” in three specific areas with its third. I have also read the two
affidavits Pfizer wishes to introduce. More importantly, I have read the order
of the management judge, Prothonotary Aalto. I find his analysis persuasive and
his reasons cogent.
[14]
As I read the evidence, the second wave of
affidavits submitted by Apotex were in reply to the five expert affidavits on
behalf of Pfizer, together with 25 pieces of literature. The affiants addressed
the large volume of evidence found in the five affidavits and pieces of
literature. Generally speaking, we seem to have reached the stage where the
experts want to argue among themselves and take issue with the weight to be
given to studies and statistical methods, or whether a report has been endorsed
by a regulatory agency. I cannot conclude that the Case Management Judge
applied the wrong principle or misapprehended the facts. There has been written
reply evidence by Apotex and if further elucidation, or contradiction, is
deemed needed, cross-examination is the avenue to be pursued for the kinds of
issues raised by Pfizer, as found by the Prothonotary. I was not persuaded that
the evidence Pfizer purports to lead in its third wave of affidavits is needed
to conduct an efficient cross-examination.
[15]
In light of the four requirements in order for
leave to be granted pursuant to Rule 312, I find that the proposed affidavits
will not serve the interests of justice as adding affidavits to the multiplicity
of affidavits does not serve any purpose at this stage, the evidence will not
assist the Court as I believe, like the Case Management Judge, that
cross-examinations would suffice, and it has not been shown that the evidence
to be adduced was not available or could not have been anticipated. The
appropriate factors were appropriately considered by Prothonotary Aalto and I
cannot find any fault with his analysis.
[16]
As a result, the appeal is dismissed. Costs in
the cause.
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