Federal Court Decisions

     T-1712-95

BETWEEN:

     AB HASSLE and ASTRA PHARMA INC.

     Applicants

     - and -

     THE MINISTER OF NATIONAL HEALTH AND WELFARE

     and APOTEX INC.

     Respondents

     REASONS FOR ORDER

JEROME, A.C.J.:

     This motion by the respondent, Apotex, to strike certain documents from the applicants' application record came on for hearing before me at Toronto, Ontario, on June 9, 1997. At the close of oral argument, I took the matter under reserve and indicated that written reasons would follow.

     After the time for filing affidavits and for conducting cross-examinations on affidavits had closed, the applicants sought leave to include certain materials in its application record which materials are at the core of the present motion to strike. The documents were prepared for another case (court file T-1446-93) and consist of an affidavit by Mr. Bernard Sherman, affirmed March 13, 1995, a cross-examination of Mr. Sherman, and a confidential cross-examination of Mr. Sherman. Mr. Justice Richard dismissed the motion for leave to include the documents as premature without prejudice to the right of Apotex to contest the contents of the applicants' application record after it had been filed. Subsequent to this Order, the applicants filed their application record which included the documents from T-1446-93, and Apotex brought the present motion to strike.

     Counsel for Apotex submitted four principal arguments to justify striking the impugned documents. First, the applicants did not respect the 1600 Rules which govern proceedings held pursuant to the Patented Medicines (Notice of Compliance) Regulations ("Regulations") and which dictate the proper form and contents of evidence and application records on judicial review as well as the timing for filing evidence. Second, the evidence in question constitutes hearsay. Third, the time for cross-examination, as established by an Order of Mr. Justice Gibson, has expired and it is inappropriate to introduce new affidavit evidence at this time. Fourth, the documents in question relate to another matter before the Court and are irrelevant to the issues as they are framed in the case at bar.

     Counsel for the applicants asserted that this motion is very similar to that dealt with by Prothonotary Morneau in Glaxo Wellcome Inc. et al v. Minister of National Health and Welfare et al., (1996) 69 C.P.R. (3d) 192, and should be dismissed accordingly. In Glaxo, Apotex included in its application record materials from another case, namely the Originating Notice of Motion, the Amended Originating Notice of Motion, and an Order. Prothonotary Morneau found that there was nothing "inappropriate or unacceptable" about including the documents because they were part of a public file of the Court. He refused to strike them from the application record, although he noted that this would not bind the judge hearing the main motion.

     In my view, the nature of the documents in question distinguishes the case at bar from Glaxo. Mr. Sherman's affidavit and the relevant cross-examinations are not neutral documents on file with the Court but constitute evidence which the applicants seek to introduce. This evidence arose in another matter and was provided by the affiant in that context. In addition, it was introduced for the purposes of the case at bar, after the time contemplated by the Rules for the filing of affidavits and conducting cross-examinations had elapsed. These irregularities of procedure and content could have an impact on the disposition of the main application.

     However, the judge hearing the main motion will be in a better position to evaluate the relevance and weight of the impugned evidence and its relation to the entire case presented by both sides. As a result, this motion is dismissed without prejudice to Apotex' right to raise this issue before the judge hearing this application on the merits.

     No order as to costs.

O T T A W A

September 26, 1997                      "James A. Jerome"

                             A.C.J.