PRACTICE |
Evidence |
Pfizer Canada Inc. v. Rhoxalpharma Inc.
T-807-03
2004 FC 1685, von Finckenstein J.
1/12/04
11 pp.
Appeal by Rhoxal from Prothonotary's order allowing Pfizer to file new testing and affidavit evidence--In response to Rhoxal's notice of allegation, Pfizer served notice of application, claiming dihydrate crystalline form of azithromy-cin more stable than monohydrate form, conversion of monohydrate to dihydrate occurring during large-scale manufacturing of azithromycin tablets--Pfizer filing expert's affidavit, but expert conducting no testing on Rhoxal's samples--Rhoxal filing affidavit of own expert, who conducted x-ray powder defraction analysis and other tests--Following cross-examination of Rhoxal's expert, during which several inconsistencies came to light, Pfizer moved to file further affidavits--Whether Prothonotary applied incorrect test--In Salton Appliances (1985) Corp. v. Salton Inc. (2000), 4 C.P.R. (4th) 491 (T.D.), Federal Court holding that when considering Federal Court Rules, 1998, s. 84(2) application, regard must be had to relevancy of affidavit, absence of prejudice to opposing party, assistance to Court, overall interest of justice--Here, Pfizer relying on s. 312, but both ss. 84(2), 312 argued before Prothonotary-- Because both sections yielding similar interpretations, Prothonotary's failure to explicitly mention s. 84(2) of no import--Prothonotary properly applied Salton test--Whether Prothonotary committed error in principle, misapprehended facts--Prothonotary wrong to say Pfizer's new evidence responding to completely new information raised by Rhoxal's expert--Although expert's testimony differing from his affidavit or statements, which may affect weight given to affidavit, that testimony not amounting to completely new information-- Prothonotary's findings Pfizer's affidavits to be introduced not containing evidence that could have been submitted previously, and that evidence to be introduced not amounting to splitting of evidence by Pfizer, difficult to support-- Although Pfizer could not predict way in which Rhoxal's expert would conduct test of tablet samples, it could nevertheless have conducted own test--Prothonotary also wrong to hold Pfizer not remedying evidence post hoc, as Pfizer now seeking to repair deficiency, i.e. absence of testing--To allow Pfizer to introduce new affidavits would substantially improve its evidence after cross-examinations, which, as set out in Salton, it cannot do--Court's interest in having fullness of pertinent evidence available cannot be used as shield to cover failures to put available information before affiants on cross-examination or as cloak to permit splitting of evidence--Prothonotary thus acting on misapprehension of facts--Appeal allowed--Federal Court Rules, 1998, SOR/98-106, ss. 84(2), 312.