Toronto, Ontario, February 14, 2007
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
PFIZER CANADA INC. and PFIZER INC.
and
COBALT PHARMACEUTICALS INC.
REASONS FOR ORDER AND ORDER
[1] These Reasons and Order deal with a motion made before me on Monday, February 12, 2007, at the outset of a hearing of two other motions, to permit the Applicants to file as part of their Record in the lengthier motion dealing with Canadian Patent 2,355,493 an affidavit of Navrish Dhanao affirmed December 11, 2006. At the hearing I indicated that the motion would be dismissed and the Dhanoa affidavit not admitted in evidence with brief reasons to follow. These are those reasons.
[2] Two proceedings T-768-06 and T-899-06 have essentially proceeded together. They are both proceedings brought under the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133 as amended (NOC Regulations). The Applicants are the same, the Minister of Health is a Respondent in both. Both include the same patents. The other Respondent, a generic drug company known as a second party in the NOC Regulations, is different in each, Cobalt Pharmaceuticals Ltd. in T-768-06 and Pharmascience Inc. in T-899-06.
[3] In each proceeding a schedule for the filing of affidavits and cross-examination was agreed to by the parties and made the subject of a Court Order. The cross-examination of one of the Pharmascience witnesses had been completed before Counsel for the Applicant, through apparent inadvertence, noticed that the Affidavit of Dhanoa, which had not yet been affirmed, was not part of the Record. Counsel for the Applicants sought the consent of the Counsel for the Respondents, Cobalt and Pharmascience, as to the filing of the affidavit and that was refused. Hence the motion.
[4] Applicants’ Counsel concedes that the Dhanoa affidavit is late, it was tendered after the date for the filing of affidavits had past, set by the undertakings between Counsel, subsequently embodied in an Order. It was tendered after cross-examination of an opposite party’s witnesses had begun. The only excuse offered as to lateness was inadvertence of Applicants’ Counsel.
[5] Rule 312 gives the Court a discretion to allow the filing of additional affidavit evidence in an appropriate circumstance. In Merck Frosst Canada & Co. v. Canada (Minister of Health) (2003), 25 C.P.R (4th) 56 this Court set out a number of criteria to be considered in granting leave to file such material:
1. Could the evidence have been anticipated earlier;
2. Will the evidence be of assistance to the Court in making its final determination;
3. Would refusal to do so cause substantial prejudice to the tendering party;
4. Will it serve the interests of justice; and
5. Will it cause unreasonable delay.
[6] In respect of the present matter it is clear from paragraph 5 of the Affidavit of Zimmerman supporting the Applicants’ motion, that the Dhanoa Affidavit was earlier contemplated, and in fact it was only Counsel’s inadvertence that precluded it from being filed in time. This is a factor supporting a refusal to allow it in now.
[7] As to the usefulness of the Dhanoa Affidavit, Dhanoa is a student-at-law in the offices of the Applicants’ solicitors. Dhanoa apparently telephoned a publishing house and received from them information as to the date of publication of a scientific article by Zhang. Dhanoa also went to CISTI, a Canadian document delivery service and procured a copy of a sticker bearing an apparent date of receipt of the Zhang article by that service. This evidence is hearsay. No reason was given as to why direct evidence from the publisher or from CISTI could not have been procured. Cross-examination of Dhanoa would be largely futile.
[8] While Rule 81 permits hearsay evidence to be adduced in affidavits an adverse inference can be drawn from a failure to provide evidence from those having personal knowledge.
[9] Further, the Dhanoa evidence is from a student-at-law in the office of the solicitors and Counsel for the Applicants. Rule 82 of this Court forbids a solicitor from arguing a matter based on his or her affidavit without leave of the Court. In Cross-Canada Auto Body Supply (Windsor) Ltd. v. Hyundai Auto Canada, [2006] F.C.J. No. 539 the Federal Court of Appeal held that it was improper for a solicitor to proceed to argue a motion where a member of his or her firm had given an affidavit. While the Court has, as permitted by Rule 82, allowed a solicitor to argue a matter where the affidavit is non-controversial, if it is other than that, the affidavit is inadmissible or other Counsel should argue the matter.
[10] Here, the affidavit, being hearsay and questionable as to admissibility given it was from a member of Applicants’ counsel’s firm, the probative value would be low. It must be remembered that what is under consideration is the evidence tendered and not the point to be made from the evidence. If the evidence is weak then, regardless of the point to be argued from it, there is less reason to permit it to be filed late.
[11] In any event, the point to be made, the publication date of the Zhang article, at the end of the day, made no difference to the arguments as presented in oral argument on the other motions.
[12] Therefore, the motion to permit the filing and addition to the Record of the Dhanoa affidavit is dismissed with costs.
ORDER
FOR THE REASONS PROVIDED HEREIN:
THIS COURT ORDERS that:
1. The motion to permit the filing and adding to the Record of the Dhanoa affidavit is dismissed; and
2. The Respondent, Cobalt, is entitled to its costs.
“Roger T. Hughes”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-768-06
STYLE OF CAUSE: Pfizer Canada Inc. et al. v.
Cobalt Pharmaceuticals et al.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 12, 2007
REASONS FOR
ORDER AND ORDER: HUGHES J.
DATED: February 14, 2007
APPEARANCES:
|
Jana Stettner |
FOR THE APPLICANTS |
|
|
|
|
Heather Watts |
FOR THE RESPONDENT, COBALT |
SOLICITORS OF RECORD:
|
TORYS, LLP |
FOR THE APPLICANTS |
|
|
|
|
DEETH WILLIAMS WALL, LLP |
FOR THE RESPONDENT, COBALT |