Date: 20000504
Docket: T-809-99
BETWEEN:
AB HASSLE and ASTRA PHARMA INC.
Applicants
- and -
THE MINISTER OF NATIONAL HEALTH
AND WELFARE, GENPHARM INC. and
TAKEDA CHEMICAL INDUSTRIES, LTD.
Respondents
REASONS FOR ORDER
MACKAY J.
[1] The respondent Genpharm Inc. ("Genpharm") appeals from an order of Prothonotary Lafrenière, dated April 10, 2000, by which he ordered that an affidavit of Dr. James Steven Rowe, sworn on March 22, 2000, contravened the order of Madam Justice Sharlow, dated October 25, 1999, under which the affidavit was said to be served. He further ordered that the affidavit be removed from the court record and that Genpharm is not entitled to rely on that affidavit in these proceedings.
[2] In the proceedings the applicants AB Hassle and Astra Pharma Inc. ("Astra") seek an order prohibiting the Minister of National Health and Welfare from issuing a notice of compliance to Genpharm. That application was commenced pursuant to The Patented Medicines (Notice of Compliance) Regulations , in response to a letter dated March 26, 1999, from Genpharm alleging, inter alia, non-infringement and invalidity of certain Canadian patents owned by Astra.
[3] By order dated June 7, 1999, on consent, Prothonotary Lafrenière set a schedule for completion of the interlocutory steps, including provision for Astra to serve and file evidence in respect to the allegations of non-infringement, for Genpharm to then file evidence concerning the issues of non-infringement and invalidity, and for Astra to then file evidence in respect to the allegations of invalidity.
[4] In accordance with that order Astra served and filed evidence in respect to the allegation of non-infringement in July 1999. In September 1999, Genpharm served the affidavits of Dr. Rowe, sworn September 9, 1999, and of Richard Pike, sworn September 13, 1999. The former affidavit comments on validity of the patents in issue.
[5] On October 25, 1999, by order, on consent, Madam Justice Sharlow revised the schedule for completion of interlocutory steps and provided for a right of reply by Genpharm to evidence on the issue of infringement. That order provided in part:
| 1. Respondents" evidence in respect of the allegations of non-infringement and invalidity is to be served by 29 October 1999. |
| 2. Applicants" Responding evidence in respect of the allegations of non-infringement and invalidity is to be served by 31 January 2000. |
| 3. Respondents" Reply evidence in respect of the allegations of non-infringement is to be served within 60 days from the service of Applicants" evidence. |
[6] In accordance with that order the applicants Astra served responding evidence on January 31, 2000. At least one of those affidavits addressed the allegations of non-infringement and invalidity of the patents in question. Then, in accordance with timing set by the order of Madam Justice Sharlow, on March 30, 2000 Genpharm provided to the applicants the reply affidavit of Dr. James Steven Rowe, sworn March 22, 2000, the affidavit here in issue.
[7] This affidavit of Dr. Rowe, purporting to respond to affidavits served on behalf of the applicants, is said by affidavit of Yoon Kang to relate to invalidity and not to relate to allegations of non-infringement. It is thus said to be contrary to the order of Madam Justice Sharlow which limited Genpharm"s reply evidence to issues of non-infringement.
[8] That affidavit of Yoon Kang was the only evidence before Prothonotary Lafrenière when the application of Astra to strike Dr. Rowe"s affidavit was heard, and the order now on appeal was made.
[9] Both parties agree that the standard of review on appeal of a discretionary decision of a prothonotary is that established in Canada v. Aqua-Jem Investments Ltd.1 that is:
| ...discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless: |
| (a) they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or |
| (b) they raise questions vital to the final issue of the case. |
[10] Further, the parties do not dispute that proceedings initiated pursuant to the NOC Regulations are meant to be summary in nature and are akin to that of a proceeding by way of judicial review (see Bayer AG v. Canada (Minister of National Health and Welfare)2).
[11] It is urged that the prothonotary was clearly wrong in ordering that the affidavit of Dr. Rowe be struck from the record since it is said there is no jurisdiction to strike out affidavits in a judicial review proceeding. Without deciding the jurisdictional issue, it is well settled that in judicial review proceedings the Court generally leaves a questionable affidavit for evaluation by the judge that is to hear the application on its merits. (See Lominadze v. Canada3). It is urged that the judge hearing this application will be in a better position to evaluate the relevance and weight of the evidence offered in the Rowe affidavit and its relation to the entire case. Further it is urged that striking the affidavit will preclude Genpharm from relying on the evidence and would have an adverse effect on the hearing of the application, with an impact on the disposition of it. That, it is urged, would cause serious prejudice to Genpharm. No evidence is offered by affidavit in regard to the possible effect on final disposition of the case or as to prejudice to Genpharm if the affidavit of Dr. Rowe is struck.
[12] For Astra reference is made to exceptions from the general practice of declining to strike affidavits in interlocutory proceedings in judicial review (see Hargrave P. in Yazdanian v. Canada (Minister of Citizenship and Immigration)4), and it is urged that the circumstances of this case also present an exceptional circumstance. Here is it urged that Prothonotary Lafrenière made no error since the only evidence before him was that the affidavit in question contravened the terms in the order of Madam Justice Sharlow under which it was purported to be adduced.
[13] I am persuaded that this is the case.
[14] Where affidavit evidence is adduced pursuant to the terms of an order, rendered on consent of the parties, which sets a schedule and defines evidence to be adduced, an affidavit that does not comply with the terms of that order may be struck from the record unless there are exceptional circumstances that would warrant otherwise. No such circumstances are here established by evidence.
[15] It is urged for Genepharm that it is premature, before cross-examinations have been conducted, to deal with the issue of admissibility of the affidavit since the material can be looked at in several ways and that determination is best left for the hearing judge considering the application on its merits. Yet this case is not simply one where the party has adduced evidence by affidavit in the normal course, rather, the affidavit has been adduced pursuant to an order of the Court. In my view the terms of that order must be met, in the absence of exceptional circumstances that would warrant variation of the process earlier established by the Court.
[16] In the circumstances, the application to set aside the order of Prothonotary Lafrenière dated April 10, 2000 is dismissed with costs fixed at $500.00 to the applicants in the event they succeed on the merits of the application.
"W. Andrew MacKay"
J.F.C.C.
Toronto, Ontario
May 4, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: T-809-99 |
| STYLE OF CAUSE: AB HASSLE and ASTRA PHARMA INC. |
| - and - |
| THE MINISTER OF NATIONAL HEALTH AND WELFARE, GENPHARM INC. and TAKEDA CHEMICAL INDUSTRIES, LTD. |
| DATE OF HEARING: MONDAY, MAY 1, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: MACKAY J. |
DATED: THURSDAY, MAY 4, 2000
APPEARANCES: Mr. Gunars A. Gaikis
For the Applicants
Mr. Kamleh Nicola
For the Respondent Genpharm Inc.
| SOLICITORS OF RECORD: Smart & Biggar |
| Barristers & Solicitors |
| 438 University Avenue, Suite 2300 |
Toronto, Ontario
| M5G 1Y8 |
| For the Applicants |
| Morris Rosenberg |
Deputy Attorney General of Canada
| For the Respondent The Minister of National Health and Welfare |
| Solicitors of Record ... cont"d Sim, Hughes, Ashton & McKay |
| Barristers & Solicitors |
| 330 University Avenue, 6th Floor |
| Toronto, Ontario |
| M5G 1R7 |
| For the Respondent Genpharm Inc. |
| Gowling, Strathy & Henderson |
| Barristers & Solicitors |
| 160 Elgin Street, Suite 2600 |
Ottawa, Ontario
| K1P 1C3 |
| For the Respondent Takeda Chemical Industries, Ltd. |
| FEDERAL COURT OF CANADA |
Date: 20000504
Docket: T-809-99
Between:
| AB HASSLE and ASTRA PHARMA INC. |
Applicants
- and -
| THE MINISTER OF NATIONAL HEALTH AND WELFARE and GENPHARM INC. and TAKEDA CHEMICAL INDUSTRIES, LTD. |
Respondents
REASONS FOR ORDER
__________________
1 (1993), 149 N.R. 273 (F.C.A.) at pp. 295-296.
2 (1993), 51 C.P.R. (3d) 329 (F.C.A.) at 336.