Date: 19990413
Docket: T-373-98
BETWEEN:
HOFFMANN-LA ROCHE LIMITED
and SYNTEX (U.S.A.) INC.
Applicants
- and -
THE MINISTER OF NATIONAL HEALTH AND WELFARE
and RHOXALPHARMA INC.
Respondents
REASONS FOR ORDER AND ORDER
EVANS J.
[1] This motion arises from an application by Hoffmann-La Roche for an order for prohibition pursuant to the Patented Medicines (Notice of Compliance) Regulations to restrain the Minister of National Health and Welfare from issuing to Rhoxalpharma a notice of compliance with respect to ticlopidine hydrochloride tablets to which a patent held by Hoffmann-La Roche applies. Rhoxalpharma"s notice of allegation had stated that it was not infringing the patent in question.
[2] By an order dated November 30, 1998 Denault J. prescribed a schedule for the completion of the pre-hearing stages in this matter. Of relevance to the present motion is the provision in the order that cross-examination be completed by January 8, 1999.
[3] The applicant filed the motion before me on January 26, 1999 requesting that the date for completion be extended and that a certain witness be ordered to re-attend to answer questions that he had refused to answer at his cross-examination, and to provide undertakings that he had given at that time.
[4] Rhoxalpharma opposed the motion, principally on the ground that Hoffmann-La Roche had provided no justification for its failure to complete cross-examination in time, or for delaying filing its motion for another 18 days after the expiry of the date set by Denault J. for the completion of cross-examinations.
[5] The respondent also contended that questions that the applicant proposed to put were of dubious or peripheral relevance to the issue in the prohibition proceeding, and that the applicant had filed no affidavit demonstrating that it had an arguable case on the merits of its application for an order of prohibition. The relevance of proposed questions and the demonstrated meritoriousness of an applicant"s case are both pertinent to the Court"s exercise of discretion to vary an order by extending the time permitted under a schedule.
[6] The applicant has not satisfied me that there is a good reason for its delay. Counsel"s only explanation for the applicant"s failure to complete the cross-examination of the witness in time was the intervention of the holiday period between the cross-examination of the witness on his affidavit and January 8, 1999. However, this was hardly an unanticipated event; nor does it explain why the applicant delayed for another 18 days before filing this motion.
[7] I am mindful also of the fact that delays in the conduct of proceedings to prohibit the issue of a notice of compliance normally benefit the applicant and prejudice the respondent.
[8] Moreover, I am not satisfied on the basis of the information and submissions provided by the parties that Hoffmann-La Roche would be significantly prejudiced in its pursuit of an order of prohibition if it were unable to put to the witness the questions that it proposed.
[9] For these reasons, the applicant"s motion is dismissed.
TORONTO, ONTARIO "John M. Evans"
April 13, 1999 J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-373-98
| STYLE OF CAUSE: HOFFMANN-LA ROCHE LIMITED and SYNTEX (U.S.A.) INC. |
Applicants
| - and - |
| THE MINISTER OF NATIONAL HEALTH AND WELFARE and RHOXALPHARMA INC. |
Respondents
DATE OF HEARING: MONDAY, FEBRUARY 15, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER AND ORDER BY: EVANS, J.
DATED: TUESDAY, APRIL 13, 1999
APPEARANCES: Ms. Y. Kang
For the Applicants
Mr. C. Feldstein
For the Respondents
SOLICITORS OF RECORD: Smart & Biggar
| Barristers & Solicitors |
| Box 111, 1500-438 University Avenue |
| M5G 2K8 |
For the Applicants
| Feldstein, Andrew & Associate |
| Barristers & Solicitors |
| 202-317 Renfrew Dr. |
| Markham, Ontario |
| L3R 9S8 |
For the Respondents
FEDERAL COURT OF CANADA
Date: 19990413
Docket: T-373-98
Between:
| HOFFMANN-LA ROCHE LIMITED and SYNTEX (U.S.A.) INC. |
Applicants
| - and - |
| THE MINISTER OF NATIONAL HEALTH AND WELFARE and RHOXALPHARMA INC. |
Respondents
REASONS FOR ORDER
| AND ORDER |