[1] This is an appeal from the decision of a judge of the Trial Division, upholding a decision of a prothonotary that permitted the respondent Apotex to file an additional affidavit in prohibition proceedings commenced by the appellants under the Patented Medicines (Notice of Compliance) Regulations. The appellant submits that the affidavit raises matters beyond the legal and factual basis set out in the Notice of Allegation, which is the document that defines the issues in proceedings of this kind. The same argument was made before the prothonotary, who concluded that the affidavit was required to permit the respondent to explain what the appellants apparently considered to be a contradiction that arose in other material filed in the course of the proceedings. The same argument was also made before the Trial Judge, who concluded that the prothonotary had considered the relevant facts and exercised her discretion judicially. We are all of the view that the Trial Judge made no error of law, or any other kind of error that warrants the intervention of this Court.

[2] This appeal will be dismissed with costs, which are hereby fixed at $ 6,000, inclusive of disbursements and GST, payable forthwith in any event of the cause.

(s) "K. Sharlow"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-90-03

STYLE OF CAUSE: ASTRAZENECA AB and ASTRAZENECA CANADA INC. v. APOTEX INC. and THE MINISTER OF HEALTH

PLACE OF HEARING: Ottawa, Ontario

DATE OF HEARING: May 21, 2003

REASONS FOR JUDGMENT :Delivered from the Bench at Ottawa, Ontario

DATED: May 21, 2003

APPEARANCES:

Mr. Gunars A. Gaikis FOR THE APPELLANTS

Mr. Andrew R. Brodkin

Mr. Ildiko Mehes FOR THE RESPONDENTS

SOLICITORS OF RECORD:

Smart & Biggar

Toronto, Ontario FOR THE APPELLANTS

Goodmans LLP

Toronto, Ontario FOR THE RESPONDENTS

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