T-442-96
| IN THE MATTER OF an application for an Order pursuant to Section 55.2(4) of the Patent Act and Section 6 of the Patented Medicines (Notice of Compliance) Regulations |
B E T W E E N:
PFIZER CANADA INC. and
UCB PHARMA, INC.,
Applicants,
- and -
APOTEX, INC. and
THE MINISTER OF NATIONAL HEALTH AND WELFARE,
Respondents
REASONS FOR ORDER AND ORDER
GILES, A.S.P.
In the motion before me the applicants sought, first, leave to file a further Amended Originating Notice of Motion to include paragraphs questioning the validity of a Notice of Allegations which had been served before a submission for a Notice of Compliance had been made to the Minister.
Secondly, the applicants sought an order requiring Dr. Bernard Sherman to reattend to continue cross-examination to answer questions arising out of the amendments.
Thirdly, the applicants sought an order permitting the filing of evidence relating to matters arising as a result of the amendments permitted.
Fourthly, the applicant sought an order amending the timetable to allow for implementation of the foregoing orders, if granted.
This motion had been brought because answers had been refused on the cross-examination of Dr. Sherman on his affidavit filed to support the respondent Apotex's submissions in response to the Originating Notice of Motion. The applicants had moved for an order requiring Dr. Sherman to answer the questions refused, and that motion had been dismissed on the grounds that the question were not relevant to anything in the Amended Originating Notice of Motion. The judge dismissing that motion, had indicated that the matter of the timing of the filing of submission with the Minister was not raised by the applicants' Originating Notice of Motion as amended.
Counsel for the respondents argued there was nothing to indicate there was any merit in the claim that the Notice of Allegations should not be served until a submission for a Notice of Compliance had been filed.
It was also argued, that even if the amendments sought were permitted there would be no right to continue cross-examination, as cross-examination had been concluded, save for the refusals, and when the refusals had been supported by the order of the Court, all opportunity to continue that cross-examination on that affidavit was terminated.
In view of the conclusions I have reached, it is not necessary for me to consider further the last two objects of the motion.
It is my view, that the failure to file submissions with the Department before serving a Notice of Allegations could be fatal to the respondents' quest for a Notice of Compliance. It is, however, not a matter to be finally determined on an interlocutory motion. It is also my view that an amendment should not be permitted if it could be struck out.
In Caterpillar Tractor Co. v. Babcock Allatt Ltd., [1983] 1 F.c. 487, it was pointed out that a pleading by a party who has not evidence to support that pleading is frivolous and vexatious and may be struck.
In the course of proceedings before me, it was stated that the proposal for the amendments was made at such a late date because the applicant had no evidence as to the date of the respondents' submissions in respect of a NOC until Dr. Sherman gave evidence before a committee of the House of Commons. The gist of that evidence before the House of Commons was, that many generic drug companies served notices of allegations before filing submissions for notices of compliance. I do not consider this to be evidence that the Notice of Allegations in this case was filed before the submissions were made for a Notice of Compliance.
It was submitted, that the only way to obtain such evidence was by continuing the cross-examination of Dr. Sherman, and causing him to produce documents which indicated the date of filing. Documents are not exigible in the usual way on a cross-examination on an affidavit. In any event, cross-examination on this particular affidavit is finished. There is nothing to indicate that any fresh affidavit would be filed. It is my view, that the time to test a pleading is as of the date it is before the Court and at the date of this hearing there was no evidence as to the failure to file in the correct allegedly time.
I therefore refuse leave to file a further Amended Originating of Motion. All the other requests must fail in consequence.
ORDER
Motion dismissed. Costs to Apotex, Inc. in any event of the cause.
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
May 28, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-442-96
STYLE OF CAUSE: PFIZER CANADA INC. and
UCB PHARMA, INC.
- and -
APOTEX, INC. and
THE MINISTER OF NATIONAL
HEALTH AND WELFARE
CONSIDERED AT OTTAWA, ONTARIO UNDER THE PROVISION OF RULE 324.
REASONS FOR ORDER
AND ORDER BY: GILES, A.S.P.
DATED: MAY 28, 1997
SOLICITORS OF RECORD:
Mr. John R. Rudolph
Ms. Emma A.C. Grell
Gowling, Strathy & Henderson
Barristers & Solicitors
2600-160 Elgin Street
Ottawa, Ontario
K1P 1C3
Solicitors for the Applicant
(Pfizer Canada Inc.)
Mr. Harry Radomski
Goodman, Phillips & Vineberg
Barristers & Solicitors
2400-250 Yonge Street West
Toronto, Ontario
M5B 2M6
For the Defendant
(Apotex Inc.)
FEDERAL COURT OF CANADA
Court No. T-442-96
Between:
PFIZER CANADA INC. and
UCB PHARMA, INC.
Applicants
- and -
APOTEX, INC. and
THE MINISTER OF NATIONAL
HEALTH AND WELFARE
Respondents
REASONS FOR ORDER & ORDER