Date: 19981214
Docket: T-733-98
OTTAWA, ONTARIO, Monday, this 14th day of December, 1998
PRESENT: THE HONOURABLE JUSTICE McGILLIS
| IN THE MATTER OF an application for an Order pursuant to Section 55.2(4) of the Patent Act and Section 6 of the Patented Medicines (Notice of Compliance) Regulations |
BETWEEN:
MERCK & CO., INC and
MERCK FROSST CANADA INC.
Applicants
- and -
NU-PHARM INC. and
THE MINISTER OF HEALTH
Respondents
REASONS FOR ORDER AND ORDER
[Delivered from the Bench at Ottawa, Ontario
on Monday, December 14, 1998]
[1] On October 27, 1998, I dismissed a motion brought by Nu-Pharm Inc. ("Nu-Pharm") for an extension of time to file affidavit evidence. In my Order dated October 27, 1998, I stated, in part, as follows:
| ... I am satisfied that the evidence on the motion, when considered in its totality, does not establish a reasonable explanation to justify the delay in this matter. Furthermore, Nu-Pharm has failed to adduce any evidence whatsoever on its motion to establish the existence of an arguable case on the merits. |
| In exercising my discretion in this matter, I have also considered that proceedings instituted under the Patented Medicines (Notice of Compliance) Regulations are to be conducted by counsel expeditiously. [See Pharmacia v. Canada (Minister of National Health and Welfare) (1994), 58 C.P.R. (3d) 209, 215 (F.C.A.)]. However, in the present case, Nu-Pharm chose to make its Notice of Allegation in circumstances where it appears to have lacked any evidence to support its allegations. Indeed, in his cross-examination, Mr. Hughes noted that Nu-Pharm"s strategy was "evolving." |
| For all of these reasons, I have therefore concluded that it is in the interests of justice to dismiss the motion. |
[2] After I had signed and rendered my Order in open Court, counsel for Nu-Pharm advised me that various affidavits were prepared and were ready for filing on or before the expiry of the September 15, 1998 deadline for the filing of affidavits. He further indicated that Nu-Pharm had an "agreement" with counsel for Merck & Co. Inc. and Merck Frosst Canada Inc. ("Merck") to permit it to file those affidavits. Counsel for Merck disputed the assertion that there had been any such agreement. Counsel for Nu-Pharm again emphasized that certain affidavits were prepared and were ready for filing prior to the expiry of the prescribed time period.
[3] Since there was no evidence in the motion materials concerning affidavits that were prepared by Nu-Pharm and were ready for filing within the prescribed time period, I believed that counsel may have inadvertently neglected to seek an extension of time in relation to those affidavits. In the circumstances, I indicated to him that he could bring another motion for an extension of time, returnable before me, concerning the affidavits which were prepared and were ready for filing within the prescribed time period.
[4] By Notice of Motion dated November 26, 1998, counsel for Nu-Pharm brought a motion seeking, among other things, permission to file four affidavits.
[5] Having considered the materials submitted on the motion and the submissions of counsel, I am satisfied that the affidavits in question were not prepared and were not ready for filing prior to the expiry of the September 15, 1998 deadline for the filing of affidavits. In the circumstances, the affidavits in question fall within the terms of my Order dated October 27, 1998, in which I refused to grant an extension of time for the filing of Nu-Pharm's affidavits. Nu-Pharm shall therefore not be permitted to file the four affidavits in question.
[6] In determining the appropriate order to be made in relation to costs in this matter, I have considered that, in bringing this motion, counsel for Nu-Pharm has sought to re-litigate my earlier Order. In my opinion, the motion was frivolous and vexatious, and constituted an abuse of process. Furthermore, voluminous materials were filed on the motion, and counsel for Merck, who is from Ottawa, was required to conduct two cross-examinations in Toronto.
[7] In his submissions on costs, counsel for Merck requested the Court to order costs in the amount of $4,000.00, plus disbursements. Counsel for Nu-Pharm submitted that costs in the amount of $2,000.00 would be appropriate.
[8] Having considered the submissions of counsel and all relevant factors, I have determined that costs should be awarded to Merck in the amount of $4,000.00, plus disbursements in the amount of $3,375.00.
[9] IT IS ORDERED THAT the motion is dismissed. Costs are awarded to Merck in the amount of $4,000.00, plus disbursements in the amount of $3,375.00, payable forthwith in any event of the cause. The following timetable shall apply in this matter:
| i) cross-examinations on Merck"s affidavits shall be completed within 60 days of the date of this Order; |
| ii) Merck"s record shall be served and filed within 60 days of the date of the completion of the cross-examinations on Merck"s affidavits; |
| iii) Nu-Pharm"s record shall be served and filed within 45 days of the date of service of Merck"s record; |
| iv) Merck"s supplementary record, if any, shall be served and filed within 30 days of the date of service of Nu-Pharm"s record. |
| D. McGillis |
| _______________________ |
| Judge |
.