 | Appeal Relating to Leave to File Additional Evidence Granted |
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Appeal Relating to Leave to File Additional Evidence Granted
Janssen-Ortho Inc. and Alza Corporation v. Novopharm Limited and the Minister of Health., 2009 FC 1179 (Zinn, J.)
November 18, 2009
Neil Belmore, Lindsay Neidrauer, Greg Beach and Marian Wolanski for Janssen-Ortho Inc. (Janssen)
Jonathan Stainsby, Julian Worsley and Andrew Skodyn for Novopharm Limited (Novopharm)
Janssen commenced a proceeding under the Patented Medicines (Notice of Compliance) Regulations, in which affidavits were tendered and cross-examinations took place. One of Janssen’s experts made reference in his affidavit to information available on a website but did not attach any excerpts from the website as an exhibit. While cross-examining Novopharm’s experts, Janssen put pages from the website to these experts, but they were unable to identify the pages. The pages were marked as an exhibit for identification purposes to the cross-examinations. Janssen included the exhibits in its Application Record and Novopharm brought a motion seeking to strike these pages from the Record. Janssen opposed the motion and also brought a cross-motion seeking leave to serve and file an additional affidavit, attaching the web pages as an exhibit. The Prothonotary held that the web pages submitted as an exhibit to the cross-examination were not in evidence and no appeal was taken from this decision. The Prothonotary allowed Janssen’s motion for leave to file the web pages from the website as additional evidence. Novopharm appealed this decision of the Prothonotary. The appeal was allowed.
The Court found that the Prothonotary acted on a misapprehension of the facts or erred in law in her application of the fourth requirement of the test under Rule 84(2) for granting leave to file evidence after having cross-examined the opposite parties’ opponents, namely whether the further evidence was available and/or could not be anticipated as being relevant at an earlier date. The Court found that Janssen knew when it filed its evidence that the pages were relevant and allowing them to tender the evidence now would permit them to split their case.
By: Chantal Saunders, Borden Ladner Gervais LLP
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