Date: 20031124
Docket: T-1878-02
Citation: 2003 FC 1380
Ottawa, Ontario, Monday, this 24th day of November, 2003
PRESENT: MADAM PROTHONOTARY MIREILLE TABIB
BETWEEN:
AB HASSLE, ASTRAZENECA AB and
ASTRAZENECA CANADA INC.
Applicants
- and -
APOTEX INC. and THE MINISTER OF HEALTH
Respondents
REASONS FOR ORDER AND ORDER
[1] I am not prepared to grant - or even to consider on its merits - Apotex's motion for leave to file sur-reply evidence. These are the reasons for my decision.
[2] This motion is made in the context of an application by AB Hassle, Astrazeneca AB and Astrazeneca Canada Inc. ("Astrazeneca") for a prohibition order pursuant to section 6(1) of the Patented Medicines (Notice of Compliance) Regultions SOR/93-133 as amended. Astrazeneca filed its notice of application on November 8, 2002. Its affidavits were filed on January 10, 2003 and those of the Respondent Apotex Inc. ("Apotex") were filed on April 2, 2003. On May 7, 2003, Astrazeneca filed a motion for inter alia, leave to file the reply affidavit of Dr. Jörgen Lindquist. Various procedural matters intervened to delay the hearing of that motion, and it was ultimately made returnable on August 19, 2003. In the meantime, this application was designated to continue as a specially managed proceeding, and I was appointed as case management prothonotary.
[3] The Court record shows that on August 6, 2003, I issued a direction requiring the parties to submit representations as to the next steps to be taken in this proceeding and proposing a schedule therefore. Apotex's first representations included a statement of its intention to bring a motion for leave to file sur-reply evidence in the event Astrazeneca was granted leave to file the affidavit of Dr. Lindquist as a result of the August 19, 2003 hearing, "either as part of the order granting the Applicants the right to file further evidence or by way of separate motion". Apotex therefore suggested it would be more appropriate to set the schedule after the hearing of August 19, 2003. In directions issued on August 6, 2003, I stated as follows:
"The Respondent's intention to apply for leave to file further evidence in the event the Applicant's motion is successful and its current uncertainty as to when it will do so are precisely why the direction was issued. I await their representations [...]."
[4] This direction signalled a concern that the proceeding might be further delayed by any motion made by Apotex for leave to file a sur-reply evidence after the determination of Astrazeneca's motion. Curiously, neither party chose to address, in their representations as to scheduling, the timing of such a motion by Apotex; the proposed schedules simply did not make any mention of such a motion.
[5] On August 8, 2003, I issued an order providing, amongst other things, as follows:
"1. Any motion the Respondent intends to make, for leave to file an additional affidavit in the event the Applicants are allowed to file the additional affidavit of Dr. Lindquist, shall be made either as part of its motion record in response to the pending motion of the Applicants, or as a motion made returnable at the general sitting of August 19, 2003 in Toronto, and shall be served and filed no later than August 14, 2003.
2. Cross-examinations on affidavits, including cross-examinations on any further affidavit(s) that may be allowed as a result of the August 19, 2003 hearing, shall be completed no later than October 31, 2003."
[6] If the means to achieve the end is, as was diplomatically suggested by Apotex's counsel, unclear from this order, the intention could hardly be clearer: Apotex was to do what was necessary to ensure that the issue of whether it was to be granted leave to file sur-reply evidence be determined by the Court at the hearing scheduled for August 19, 2003. At least, Apotex understood this to be the intent, as it states that it specifically reviewed the motion record it had already filed in response to Astrazeneca's motion, in order to ensure that "such relief had been adequately sought" and that it "had clearly and explicitly addressed Apotex's request to be permitted to file additional evidence". Having performed that exercise, Apotex determined "that it was not only unnecessary to file a separate motion in this regard, but would be wasteful of the parties and of the Court's time and resources to be inundated with an entirely new motion". (H.B. Radomski's affidavit in support of Apotex's motion, at paragraphs 15, 16 and 17).
[7] The hearing of August 19, 2003 took place before Prothonotary Lafrenière. An order was issued on August 21, 2003, containing no mention of a request by Apotex for leave to file additional evidence and ordering no such relief. Apotex contends the matter was not determined by Prothonotary Lafrenière, that the latter "indicated that he was not inclined at that time to determine" the issue, and stated in the course of the hearing that Apotex could bring a motion before me to seek to file additional evidence (Affidavit of H.B. Radomski, at paragraphs 19 and 20). Apotex argues that the affidavit evidence of Mr. Radomski is the only evidence before the Court of what transpired at the hearing of August 19, 1003; it suggests that this evidence, such as it is, reveals that although Apotex attempted to comply with the requirement of the order of August 8, 2003, it cannot be faulted if Prothonotary Lafrenière declined to rule on the matter. Apotex pleads that the only option left to it in view of Prothonotary Lafrenière's comments was to bring the present motion, so that the issue of whether it can be permitted to file additional evidence can be determined.
[8] The evidence tendered by Apotex as to the outcome of the hearing of August 19, 2003 is ambiguous: Did Prothonotary Lafrenière decline to hear Apotex's motion? If so, on what grounds? Or did Prothonotary Lafrenière instead consider the request and find that there was insufficient material before him to permit him to make a determination? Astrazeneca neither cross-examined Mr. Radomski on his affidavit nor filed its own evidence as to what happened on August 19, 2003.
[9] I indicated at the hearing of this motion that I was inclined, based on the use of language in Mr. Radomski's affidavit, to find that Prothonotary Lafrenière did not refuse to hear the motion, but that, having considered the material before him, he concluded that there was insufficient material before him upon which to make a determination (as indeed I would have done, based on my review of the written representations filed by Apotex in that instance).
[10] It must here be kept in mind that filing sur-reply evidence is not a right, but a discretionary relief, and that Apotex had the burden of establishing that conditions existed for the relief to be granted. A conclusion that there is insufficient material to make a determination is, in effect, a conclusion that the moving party has failed to meet its burden, and thus, that its motion cannot be granted. Such a conclusion determines the issue. Unless leave is specifically granted to reapply, a party having failed on a motion may not bring a new motion with better evidence.
[11] Did Prothonotary Lafrenière's statement that Apotex could bring a motion before me to seek leave to file additional affidavit evidence in reply constitute leave to reapply? I do not think so. Leave to reapply on better evidence which was or should have been available to the party at a first hearing goes against the principle of finality of judgement and must, in my view, be exceptional and clearly stated. It cannot be inferred. Of course, parties are always free to bring motions to the Court if they so choose; it does not mean that they have the right for their motions to be considered on their merits if they are improper, untimely or abusive. To state that a party can bring a motion if it so wishes it to state a fact, it is not to grant leave to do so.
[12] Fortunately, I do not have to rest solely on my interpretation of the evidence given in the affidavit of Mr. Radomski to support my conclusion as to the outcome of the August 19, 2003 hearing. The abstract of the hearing of August 19, 1003 is entered as part of the Court's record and I am entitled to take judicial notice of it. It reads in part as follows:
"The Court indicated that it is not satisfied that it has sufficient evidence before it to grant leave for the Respondent to file a sur-reply. The Court further indicated that the Respondent is free to submit a subsequent motion to Prothonotary Tabib's attention after this matter has been disposed of. The Court refers this matter to Prothonotary Tabib should the Respondent wish to submit a motion".
[13] Although the abstract of hearing is also but an interpretation by the Registry Officer of the comments made at the hearing, it supports the conclusion I have come to, to the effect that Prothonotary Lafrenière did consider Apotex's request for leave to file additional evidence, and determined that the material submitted was insufficient. In effect, Apotex's motion was dismissed, without leave to reapply having been expressly granted.
[14] I add here that if the formal order signed by Prothonotary Lafrenière does not accord with what was decided at the hearing, the parties have only themselves to blame.
[15] The Court record discloses that, as per the direction of the Court, a draft order was submitted by Astrazeneca's counsel, presumably after approval by Apotex's counsel. If, as Apotex suggested, Prothonotary Lafrenière had simply declined to deal with its request and either referred the matter to me or granted leave to reapply with a fresh motion, this disposition should have been part of the order. Apotex had the opportunity to ensure that it be included clearly in the order. Alternatively, it could have applied to Prothonotary Lafrenière to reconsider his order pursuant to Rule 397. It is simply inappropriate and abusive for a party who fails to ensure that an order deals with all the issues determined or presented for determination at a hearing to construe the resulting uncertainty as an authorization to reapply on better evidence.
ORDER
IT IS ORDERED THAT:
1. The Respondent's motion is dismissed, with costs payable forthwith by the Respondent Apotex.
2. Cross-examinations on affidavit shall be completed no later than February 28, 2004.
3. The parties have leave to serve and file a requisition for hearing as soon as cross-examinations are completed, upon filing a certification that cross-examinations have been completed. The Applicant shall serve and file a requisition for hearing no later than March 10, 2004.
4. If difficulties arise as to the scheduling of cross-examinations, the parties shall forthwith apply to the Court for directions.
"Mireille Tabib"
Prothonotary
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1878-02
STYLE OF CAUSE: AB Hassle, Astrazeneca AB and Astrazeneca
Canada Inc.
v.
Apotex Inc. and The Minister of Health
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: November 21, 2003
REASONS FOR Judgement : Madam Prothonotary Mireille Tabib
APPEARANCES:
Gunars A. Gaikis FOR APPLICANTS
Scott Beezer
Andrew R. Brodkin FOR RESPONDENT
SOLICITORS OF RECORD:
Smart & Biggar FOR APPLICANTS
Barristers & Solicitors
Toronto, Ontario
Goodmans LLP FOR RESPONDENT
Barristers & Solicitors Apotex Inc.
Toronto, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada The Minister of Health