Date: 19981013
Docket: T-418-98
BETWEEN:
MERCK FROSST CANADA INC.
and
MERCK & CO., INC.
Applicants
- and -
THE MINISTER OF HEALTH
and
APOTEX INC.
Respondents
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] The applicants have filed a motion asking for an order
| a) permitting the applicants to serve and file, within three (3) days of the date of this order, a reply affidavit of Stephen A. Weissman on the merits. |
| b) permitting the applicants to serve and file a supplementary record within ten (10) days of service of the record of the respondent Apotex Inc. |
[2] Following an order by Reed J. dated July 22, 1998, the respondent Apotex Inc. filed its evidence in these proceedings comprising ten (10) affidavits.
[3] One of these affidavits was sworn by K.S. Keshava Murthy on July 16, 1998.
[4] By this motion, the applicants request leave from this Court to serve and file a further affidavit of Stephen A. Weissman in reply to the Murthy affidavit filed on July 16, 1998.
[5] I have reviewed carefully the affidavits that were filed supporting the arguments of all parties.
[6] I understand that the major point on which applicants seek to reply refers to paragraph 28 of the Murthy affidavit of June 16, 1998 and particularly shown on charts identified as (BCI) APOTEX ACTUAL/DIFFERENT PROCESS disclosed by the respondent Apotex after the applicant Merck Frosst Canada Inc. ("Merck") had filed its evidence on May 14, 1998.
[7] I understand from representations by the respondent Apotex" counsel that there was an extensive exchange of correspondence between the two parties following the order of Mr. Justice Pinard, dated March 26, 1998. I have read the Weissman affidavit that the applicants" counsel wants to file and I agree that this affidavit contains relevant evidence which may assist the Court at the hearing on the merits in making its final determination as to the justification of Apotex" allegations.
[8] I understand that the parties are in the process of completing the cross-examinations on affidavits by October 30, 1998 and that the applicants" and respondents" records shall be filed and served by January 15, 1999.
[9] It is the pretension of the respondents" counsel that the respondent Apotex should have the last word on this matter.
[10] I agree that the respondent Apotex should serve and file his record after having the opportunity to review the applicants" record.
[11] Nevertheless, it does not justify in any way a "cat and mouse game" during the process and the applicants" counsel has demonstrated that he was justified to file this motion. Besides, I do not see any prejudice that could be supported by the respondent Apotex, by the filing of this affidavit. It seems to me that if the information contained in the Murthy affidavit, filed on June 16, 1998, would have been part of the evidence initially, it would have been much more easier for Mr. Steven A. Weissman to conduct a comprehensive analysis of the process herein the BCI process, as he was requested to by the applicant Merck.
[12] The respondent has filed an affidavit of Mr. Hughes. In his affidavit, Mr. Hughes tries to demonstrate that new additional facts regarding the Apotex" process were included at the time that Apotex filed its affidavit evidence.
[13] I disagree with that argument and refer the respondent to its own exhibits, particularly the chart on the BCI process showing the synthetic scheme revised for SIMVASTATIN.
[14] I believe that it is in the interest of justice that Merck may be permitted to provide the Weissman affidavit responding to matters raised for the first time in the Murthy affidavit, filed on July 16, 1998.
[15] It is also reasonable to allow the applicant Merck to file a supplementary record including a reply memorandum of points to be argued to assist the Court.
[16] For these reasons, this Court orders that:
| - The applicants be allowed to serve and file within three (3) days of the date of this order, a reply affidavit of Steven A. Weissman on the merits; |
| - The applicants be permitted to serve and file a supplementary record within ten (10) days of service of the record of the respondent Apotex Inc.; |
| - The costs in the cause. |
Pierre Blais
Judge
OTTAWA, ONTARIO
October 13, 1998