Bayer AG v. Canada ( Minister of National Health and Welfare )
T-1192-93
MacKay J.
20/10/94
5 pp.
Application to file affidavit in reply, and to extend times fixed for cross-examination upon affidavits -- Bayer seeking to prohibit issuance of notice of compliance to Apotex -- Apotex' evidence contained in affidavits of Dr. McClelland based upon his opinion patent in issue only claiming two independent claims pertaining to "Cyproflaxin", each of which final step for producing "Cyproflaxin" -- McClelland of opinion steps preliminary to final process irrelevant to infringement issue -- Bayer's evidence, filed in August 1994, considering all steps in process -- McClelland seeking to reply to this evidence -- Proceedings under R. 704, concerned with expungement proceedings distinguished -- Court having discretion to permit filing affidavits in reply, notwithstanding absence of express provision therefor in Federal Court Rules, Part V.1, where in interests of justice, assisting Court, not seriously prejudicing other party -- Significance of steps prior to final step in Apotex' process only apparent as of filing of Bayer's expert affidavits in August 1994 -- Ordinarily, under Part V.1 Rules, Bayer's evidence in support of application would have been filed with its record before respondent expected to reply -- While process varied under present Regulations, general principle party seeking relief should provide evidence first, significant to whether Apotex should be permitted to file affidavit in reply -- Would not be allowing Apotex to "split its case" as case not considered until matter heard -- Must ensure fair opportunities for both parties to adduce affidavit evidence on issues as perceives them and to respond to other issues advanced by other party -- If evidence of experts on both sides of issue available at hearing of matter, filing of affidavit in reply serving interests of justice between parties and necessary for Court to determine issue -- Would not further delay hearing of application[cad 211]Application allowed -- Patented Medicines (Notice of Compliance) Regulations, SOR/93-133 -- Federal Court Rules, C.R.C., c. 663, R. 704 (as am. by SOR/79-57, s. 16; SOR/92-726, s. 9), Part V.1 (as enacted by SOR/92-43, s. 19; SOR/94-41, ss. 14, 15, 16, 17).