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Date: 20060616

Docket: T-214-05

Citation: 2006 FC 774

OTTAWA, ONTARIO, June 16, 2006

PRESENT:      The Honourable Mr. Justice von Finckenstein











[1]                This is an appeal from the Order of Madam Prothonotary Milczynski, dated May 5, 2006, wherein the Prothonotary struck the affidavit of Andrew Skodyn sworn April 7, 2006 (the "Skodyn Affidavit"). Mr. Skodyn is a solicitor with the firm of Heenan Blaikie, LLP, who are counsel for Novopharm Limited ("Novopharm"). The Skodyn Affidavit was filed by Novopharm in support of its motion pursuant to Rule 312 of the Federal Courts Rules, SOR/98-106 to file additional evidence. Immediately prior to the hearing of Novopharm's Rule 312 motion before the Prothonotary on April 27, 2006, Abbott Laboratories Limited and TAP Pharmaceuticals Inc. (together, "Abbott") brought a preliminary motion to strike the Skodyn Affidavit on the grounds that it was sworn by a solicitor and allegedly deals with substantive issues in dispute as between the parties. Abbot succeeded on its preliminary motion and the Prothonotary struck the Skodyn Affidavit in its entirety and immediately thereafter dismissed Novopharm's motion on the grounds of lack of evidence.

[2]                The key portion of Prothonotary Milczynski's order states:

The Skodyn Affidavit contains argument and offers opinion relating to the legal conclusions and findings to be made on this motion. As I am bound by the jurisprudence regarding solicitor affidavits that contain more than non-contentious facts or documents, the affidavit must be struck out in its entirety. Further and in that regard, I decline to edit or strike simply portions of the affidavit.

(Motion Record of the Respondent, Tab 2 page 10)

[3]                Subsequent to the order of the Prothonotary, Novopharm filed another motion pursuant to Rule 312. This time the experts who swore the proposed sur-reply affidavits also provided affidavits in support of a Rule 312 motion. The affiants are scheduled for cross examination and the motion will be heard by Prothonotary Milczynski on July 24, 2006.


[4]                This case raises two issues:

1.          Is this appeal moot?

2.          Did the Prothonotary proceed on a wrong principle or on a misapprehension of law?


Is this appeal moot?

[5]                The law of mootness was clearly enunciated by the Supreme Court in Borowski v. Canada (Attorney General), [1989] 1 SCR 342 where Justice Sopinka stated at paragraphs 15 and 16:

The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question.    The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties.    If the decision of the court will have no practical effect on such rights, the court will decline to decide the case.    This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision.    Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot.    The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice.    The relevant factors relating to the exercise of the court's discretion are discussed hereinafter.

The approach in recent cases involves a two-step analysis.    First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic.    Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case.

(Underlining Added)

[6]                Abbott's submission states:

Novopharm is not asking this Court to grant it leave for filing evidence under Rule 312 but only to reverse the striking of the Skodyn affidavit. Such an Order will have no effect on the parties or the case, Abbott submits that this is clearly a case where the appeal is moot because the evidence of the experts themselves will be before the court, in sworn affidavits, at the hearing of Novopharm's new 312 motion in the week of July 24, 2006. At that time, the case management prothonotary will hear Novopharm's 312 motion on its merits. Accordingly, even if Novopharm were to succeed in its present appeal, it would be no further ahead then it presently is. Indeed, there does not appear to be any reason for Novopharm's present appeal other than adding extra time and expense to a summary proceeding. Needless to say, not only is this burdensome on the parties, it is unnecessarily taxing on the judicial resources of the Federal Court.

(Responding Motion Record of the Applicants at para 37)

[7]                Novopharm advances the position that the issue is not moot. According to Novopharm, it is an open question whether Prothonotary Milczynski was correct when she stated, "[a]s I am bound by the jurisprudence regarding solicitor affidavits that contain more than non-contentious facts or documents, the affidavit must be struck out in its entirety." In Novopharm's view, the word "must" suggests that she had no discretion but to strike the affidavit in its entirety, and Novopharm submits that she had the discretion of whether or not to strike the affidavit and also whether or not to redact the affidavit.

[8]                Additionally Novopharm submits, even if the case is moot, the court has the discretion to proceed anyway and should do so in this case. When asked by the court what benefit a decision in favour of Novopharm would yield (given that the same proposed sur-reply evidence will be before the court on July 24, 2006, but this time accompanied by supporting affidavits from the proposed sur-reply affiants) Novopharm advanced the following reasons:

1. it will cross-reference the evidence for the benefit of the Court; i.e. it will explain how the proposed sur-reply evidence relates to the evidence already filed;

2. it will clarify what type of evidence is required for Rule 312 motions; and

3. it will clarify how the Cross Canada Auto Body Supply (Windsor) Ltd v. Hyundai Auto Canada, a division of Hyundai Motor America, 2006 FCA 133, the leading case on solicitor's affidavits, should be applied in a Rule 312 application.

[9]                Upon applying Borowski, supra, it strikes me that my deciding this case will have no practical effect whatsoever. First, the issue is before the Prothonotary again on July 24, 2006, and the issue will again be whether Novopharm is allowed to file the proposed sur-reply affidavits that were before the court on May 5, 2006.

[10]               Second, both sides do not dispute that this is a purely interlocutory matter; thus, there will be no lasting prejudice to either party.

[11]            Third, the court will have supporting affidavits from the proposed sur-reply affiants before it. It does not require Mr. Skodyn's affidavit, which, to use Novopharm's words, only contains 'derivative evidence' and no original evidence. The key issue that the court has to determine, besides the three items mentioned by Prothonotary Milczynski (being whether the additional evidence serves the interests of justice, whether the additional evidence will assist the Court; and whether there will be substantial or significant prejudice to the responding party) is whether or not this evidence could have been reasonably anticipated by the experts. Mr. Skodyn's affidavit, containing derivative evidence, will be of no help on this point.


[12]            As far as the previous three points advanced by Novopharm suggesting that I exercise my discretion are concerned, I find them unpersuasive and I decline to exercise my discretion for the following three reasons.

[13]            First, in my view clarifying the evidence and relating one piece of evidence to another is the job of counsel and not affiants.

[14]            Second, evidence in support of Rule 312 motions obviously should be evidence designed to show the court why the additional evidence is required. The best source to describe why the evidence contained in the proposed sur-reply evidence could not have been anticipated and included in the previously filed evidence has to be the proposed expert affiant, and counsel for the opposing side should have a chance to test any assertions of such affiants under cross examination.

[15]            Third, with respect to Cross Canada, supra, both parties agree that Prothonotary Milczynski, although not citing that case in her decision, discussed it during the hearing. Cross Canada, supra makes it quite clear that there is no hard and fast rule regarding solicitors' affidavits but rather suggested in paragraph 5 that the following nine factors (in so far as they apply) should be taken into consideration when using solicitors' affidavits:

a)          the state of proceedings;

b)          the likelihood that the witness will be called;

c)          the good faith (or otherwise) of the party making the application;

d)          the significance of the evidence to be led;

e)          the impact of removing counsel on the party's right to be represented by counsel of choice;

f)           whether trial is by judge or jury;

g)          the likelihood of a real conflict arising or that the evidence will be "tainted";

h)          who will call the witness if, for example there is a probability counsel will be in a position to cross-examine a favourable witness;

i)           the connection or relationship between counsel, the prospective witness and the parties involved in the litigation.

[16]            No argument has been presented that Prothonotary Milczynski did not apply or misapplied the principles set out in Cross Canada, supra. Consequently, I fail to see what contribution to the law a reconsideration of Prothonotary Milczynski's decision would make.

[17]            By way of obiter I might add that if I would have had to review Prothonotary Milczynski's decision on the merits, I would have also upheld it as I fully agree with her that the affidavit "contains argument and offers opinion relating to legal conclusions and findings to be made on this motion". I do not interpret her use of the word "must" as meaning that she had no discretion, but rather that the facts of this case drove her to make the decision she did.

[18]            Accordingly, this application is dismissed as being moot.




1.                   The appeal of Prothonotary Milczynski's Order of May 5, 2006 be dismissed.

2.                   Costs to be payable to the Respondents in any event of the cause.

"Konrad W. von Finckenstein"




DOCKET:                                           T-214-05

STYLE OF CAUSE:                           Abbott Laboratories et al.

                                                            v. The Minister of Health et al.

PLACE OF HEARING:                     Toronto, Ontario

DATE OF HEARING:                       June 14, 2006


ORDER AND ORDER:                    von FINCKENSTEIN J.

DATED:                                              June 16, 2006


Andrew Reddon

Aaron Sawchuk


Ian Godfrey

Jan Parnega




McCarthy Tétrault LLP

Toronto, Ontario


Heenan Blaikie LLP

Toronto, Ontario



Gowling Lafleur Henderson LLP

Ottawa, Ontario



F.B. (Rick) Woyiwada



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