Date: 19980908
Dockets: A-61-98
(T-1542-96)
A-62-98
(T-1970-94)
CORAM: DESJARDINS J.A.
DÉCARY J.A.
NOËL J.A.
BETWEEN:
JANSSEN PHARMACEUTICA INC. and
JANSSEN PHARMACEUTICA naamloze vennootschap
Appellants
(Applicants)
- and -
APOTEX INC. and
THE MINISTER OF NATIONAL HEALTH AND WELFARE
Respondents
(Respondents)
Heard at Ottawa (Ontario) on Tuesday, September 8, 1998.
Judgment delivered for the Bench on September 8, 1998.
REASONS FOR JUDGMENT
OF THE COURT DELIVERED BY: DÉCARY J.A.
Date: 19980908
Dockets: A-61-98
(T-1542-96)
A-62-98
(T-1970-94)
CORAM: DESJARDINS J.A.
DÉCARY J.A.
NOËL J.A.
BETWEEN:
JANSSEN PHARMACEUTICA INC. and
JANSSEN PHARMACEUTICA naamloze vennootschap
Appellants
(Applicants)
- and -
APOTEX INC. and
THE MINISTER OF NATIONAL HEALTH AND WELFARE
Respondents
(Respondents)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa (Ontario)
on Tuesday, September 8, 1998)
DÉCARY J.A.
[1] Respondent Apotex Inc. ("the respondent") brought two motions to strike the re-examination of an expert witness who had given affidavit evidence in the context of two prohibition proceedings initiated by the appellants pursuant to section 6(1) of the Patented Medicines (Notice of Compliance) Regulations (SOR/93-133) ("the NOC Regulations"). The respondent was of the view that the questions put forth by counsel for the appellants did not deal with or respond to matters raised in cross-examination. As both proceedings raise identical issues and as both affidavits are virtually identical, the cross-examination and re-examination of the witness and the subsequent Orders and Reasons for Order of the Motions Judge dealt with both proceedings. The two appeals were therefore consolidated and these reasons will apply to both.
[2] In order to succeed in matters such as the present one, the appellants must establish that the judge has proceeded on some wrong principle of law or has seriously misapprehended the facts, or that an obvious injustice would otherwise result (see Pharmacia Inc. v. Canada (Minister of National Health and Welfare) (1994), 58 C.P.R. (3d) 209, at 213).
[3] In the case at bar, we have reached the view that the Motions Judge has seriously misapprehended the evidence and has erred in striking the re-examination of the witness.
[4] With respect to the first set of questions " that dealing with the condensation reaction " the Motions Judge's finding appears to be predicated on an isolated appraisal of the witness' answer to question 177. When regard is had to the answers to questions 135, 136 and 176, there is clearly some discrepancy between the witness' use of the words "condensation reaction" in his affidavit and his actual understanding of the strict meaning of that term. It was therefore open for counsel for the appellants to seek a clarification on this point in his re-examination.
[5] With respect to the second set of questions " that related to whether anything leaves the molecule during the reaction ", questions 265 to 273 give rise to some confusion in terms of the difference between "leaving" the molecule and "leaving" the reaction site. On that basis, counsel for the appellants was justified in re-examining the witness in order to clarify whether certain things did in fact leave the reaction site in the appellants' process.
[6] The Court wishes to observe that considerable time, effort and resources have been devoted to the hearing of these interlocutory matters in both divisions of the Court. The motions were taken in the course of proceedings initiated under the NOC Regulations. Such proceedings are meant to be summary in nature and they generally raise complex and technical questions of fact. In the circumstances, the Court would expect counsel to have enough judgment, wisdom and common sense to reserve issues related to the permissibility of questions in a re-examination to the hearing judge unless the questions can clearly be shown to warrant the immediate attention of a judge. Where counsel seek an immediate resolution, they should be mindful that the motions judge has the discretion to defer their motion to the hearing whenever he or she is of the view that the motion could be more efficiently dealt with at that stage.
[7] The appeals will be allowed with a single set of costs both here and below against the respondent Apotex, the order of the Motions Judge will be set aside, the motions of the respondent Apotex will be dismissed and the re-examination will remain on the record.
"Robert Décary"
J.A.