PM(NOC) – Reply Evidence Must Address New Facts and Arguments Raised by the Other Party
Merck-Frosst – Schering Pharma GP and Shering Corporation. v. Novopharm and Minister of Health, 2009 FC 914 (Zinn J)

September 15, 2009

Steven G. Mason and David Tait for the Applicant, Merck-Frosst – Schering Pharma GP
Arthur B. Renaud and Dominique Hussey for the Respondent, Novopharm Limited

This was an appeal brought by Novopharm of the decision of Prothonotary Milczynski, dismissing its motion for leave to serve and file reply evidence.

Justice Zinn held that the Prothonotary placed too great an emphasis on the fact that the affidavit was unsworn, and should have focussed on whether or not the proposed evidence was actually proper reply evidence.

The Court followed a two-step analysis of the proposed reply evidence: 1) Ask whether the proposed evidence is in response to the other party’s evidence in that it critiques, rebuts, challenges, refutes or disproves the opposite party’s evidence; and, 2) Ask whether the evidence could have been anticipated as being relevant at an earlier date.

The Court noted that proper reply evidence must address new evidence raised by the other party, as opposed to an argument or rebuttal of the other party’s interpretation of the original evidence. While a party must not split its case, a party is not required to deal with every argument it can anticipate being put forward at the first instance. Reply evidence is proper where the reply is directed towards responding to new matters raised by the other party including: different science, different authorities and different assumptions.

The Court granted leave to Novopharm to file some of the proposed reply evidence with costs on the appeal and the motion before the Prothonotary in any event of the cause.

By: Etienne de Villiers, Dimock Stratton LLP