Date: 19980128
Docket: T-1970-94
T-1542-96
| IN THE MATTER OF an application for an Order of Prohibition pursuant to Section 55.2(4) of the Patent Act and Section 6 of the Patented Medicines (Notice of Compliance) Regulations |
BETWEEN:
JANSSEN PHARMACEUTICA INC. and
JANSSEN PHARMACEUTICA naamloze vennootschap,
Applicants,
- and -
APOTEX INC., and
THE MINISTER OF NATIONAL HEALTH AND WELFARE,
Respondents.
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] These two motions were brought by the Respondent, Apotex Inc., in the context of two prohibition proceedings initiated by the Applicants pursuant to section 6(1) of the Patented Medicines (Notice of Compliance) Regulations.1 The Respondent asked the Court to strike out the entire re-examination of Dr. Van Lommen, who had given affidavit evidence in both proceedings, on the ground that the questions put forth by counsel for the Applicants were not confined to dealing with or explaining matters raised in cross-examination. The motions were granted for the following reasons.
[2] The purpose of re-examination is to enable the witness to clarify any ambiguity or obscurity raised in cross-examination. It is proper to clear up confusion but improper to introduce fresh evidence or a new matter not covered in cross-examination.2 If the meaning of expressions used by the witness or cross-examiner is doubtful, it can be clarified.
[3] The first set of questions raised in cross-examination of Dr. Van Lommen related to the definition of "condensation reaction". The question asked to Dr. Van Lommen was his understanding of what was a condensation reaction. I have reproduced below the relevant questions and answers:
| Q. I want to ask you about your understanding of what a condensation reaction is. Can you tell me what that is, in your view? |
| A. Well, it is the reaction of two parts in the smaller molecule that went out and I used this in... well, probably in a wrong way in my affidavit. I mixed up the word "acylation reaction" with "condensation reaction". |
...
Q. Okay. And, that the product of that reaction... would it be produced... is that what you would call the condensation reaction?
A. I call this a condensation reaction, but a name for it is an acylation of an amine, so that is maybe a more appropriate and correct... but call this a condensation reaction.
Q. Okay. You have called this a condensation reaction?
A. Yes. "Emphasis added >
[3] In my opinion, the question was clearly answered. There is no ambiguity. Thus, it was inappropriate for the Applicants on re-examination to go further and try to introduce new descriptions not asked in cross-examination.
[4] The second set of questions dealt with the reaction between compound 7b and compound 8. Dr. Van Lommen was asked whether there was something that left the molecule during the reaction:
Q. Okay. Does anything leave the molecule?
A. Not the molecule, no.
Q. Okay. Everything stays with the molecule in this reaction?
A. As always in an intramolecular reaction, yes.
[5] In re-examination, Dr. Van Lommen was asked to clarify the reaction between the two compounds. He was asked, in particular, about other changes involving other aspects of the molecule. In my view, this is clearly an attempt to introduce fresh evidence. Nothing in cross-examination pertained to other changes occurring during the reaction. The question was inappropriate in the context of re-examination.
[6] For these reasons, the re-examination of Dr. Van Lommen is struck.
JUDGE
OTTAWA, ONTARIO
January 28, 1998
__________________
2 Vapor Canada Ltd. v. MacDonald et al. (1972), 6 C.P.R. (2d) 204 at 218 (F.C.T.D.); The Queen's Case (1820) 129 E.R. 976 (H.L.); Sopinka and Lederman, The Law of Evidence in Canada (Toronto: Butterworths, 1992) at 879; Williston and Rolls, The Conduct of an Action (Toronto: Butterworths, 1982) at 167.