Date: 19980218
Docket: T-1742-95
BETWEEN:
HOFFMANN-LA ROCHE LIMITED and
SYNTEX PHARMACEUTICALS INTERNATIONAL LIMITED
Applicants
- and -
THE MINISTER OF NATIONAL HEALTH AND WELFARE
and NU-PHARM INC.
Respondents
REASONS FOR ORDER
RICHARD J.:
[1] The moving party, Nu-Pharm Inc., one of the respondents, seeks an order striking from the applicants' application record the following documents:
| 1) Tabs 8, 9 and 10 consisting of a notice of motion by Nu-Pharm seeking a protective order, the affidavit of Antonie Van Doornik filed in support of such motion, and the order granting the motion, respectively; |
| 2) Tabs 15, 16 and 17 consisting of a notice of motion by Nu-Pharm seeking leave to file further evidence in order to replace an affidavit of Dr. Bernard Sherman, the affidavit of a solicitor in support of such motion, and the order allowing the filing of a further affidavit, respectively; and |
| 3) Paragraph 18 and 19 of the applicants' memorandum of fact and law found in Tab 26. |
[2] Counsel for the moving party, on the hearing of the motion, did not press for the exclusion of the two notices of motion and of the two orders given my decision in Merck Frosst Canada Inc. v. Minister of National Health and Welfare (1995), 58 C.P.R. (3d) 245 at 250.
[3] Counsel for the moving party submitted that the affidavits in support of such motions and the reference in paragraph 18 of the applicants' memorandum to the solicitor's affidavit in Tab 16 should be struck from the applicants' application record.
[4] Counsel for the applicants submitted that they should remain in the application because the affidavit in Tab 9 could assist in establishing an inconsistent statement and the affidavit in Tab 16 could assist on an issue of credibility.
[5] The affidavit in Tab 9 was made in support of a protective order. The deponent, Antonie Van Doornik filed a further affidavit in the proceeding and was cross-examined. Any alleged inconsistent statement he may have made between the first and the second affidavit could have been explored in that cross-examination.
[6] The affidavit in Tab 16 was made in support of a motion to replace an affidavit sworn by Dr. Sherman. Mr. Justice Pinard ordered that "Nu-Pharm shall be permitted, on or before March 18, 1997, to file a further affidavit of Dr. Bernard Sherman which will explain that he made a mistake in filing his first Affidavit and which will append as an exhibit the documents attached as Exhibit B to the Confidential Affidavit of H.B. Radomski sworn February 18, 1997". Clearly, Mr. Justice Pinard concluded that the explanation of the mistake arising in Dr. Sherman's first affidavit should be given by him first hand.
[7] Dr. Sherman did file a further affidavit and was cross-examined.
[8] Counsel for the applicants had a full opportunity to question Dr. Sherman on cross-examination and confront him with any contradictory statements either made by him or on his behalf.
[9] I have concluded, as I did in Merck Frosst, that the two affidavits filed in support of the interlocutory motions, one found at Tab 9 and the other at Tab 16, should be removed from the applicants' application record.
[10] There is no need to order the deletion or removal of paragraph 18 in the applicants' memorandum of fact and law since it does not describe the contents of the affidavit referred to. Paragraph 19 stands since it refers to the order of Mr. Justice Pinard.
[11] An order will go accordingly.
[12] The applicants are to take the necessary steps to comply with the order.
__________________________
Judge
Ottawa, Ontario
February 18, 1998