Eli Lilly and Co. v. Novopharm Ltd.

T-2210-93

Rothstein J.

1/2/95

Applicants seeking to file affidavit A to replace affidavit B; or, in the alternative, variation, pursuant to Rule 1733, of order prohibiting use of affidavit B -- Use of affidavit B prohibited due to inability of affiant B to undergo cross-examination as result of illness -- Respondents' willingness to accommodate applicants conditional upon applicants' consent to file affidavit C -- Filing of affidavit C refused by earlier order now under appeal -- Decision to prohibit use of affidavit B made in response to applicants' position they be allowed to use affidavit B with or without cross-examination; applicants not offering any alternative i.e. replacement of affidavit B or modification of cross-examination schedule -- Applicants now not offering any reason for failure to seek replacement of affidavit B during initial motion -- Procedures regarding filing of material pursuant to Regulations often used to obtain tactical advantages; such use to be discouraged -- Proceedings must strike balance between dealing with matters pursuant to Regulations in summary manner and allowing for reasonably complete and relevant information to be included in record -- Applicants seeking Court's indulgence to allow filing of substitute affidavit in place of affidavit ordered to be struck out, yet refusing to accede to introduction of affidavit by respondents -- As applicants adopting strict, intransigent approach, matter to be decided according to such standard -- Court clearly indicating during earlier proceeding applicants to either come to agreement with respondents with respect to material to be filed or run risk application to file affidavit A denied -- Unfair for applicant to now obtain indulgence sought: application dismissed-Variance of order prohibiting use of affidavit B also denied as applicants not satisfying Rule 1733 due diligence requirement-Respondents entitled to costs of motion in any event of cause-Patented Medicines (Notice of Compliance) Regulations, SOR/93-133 -- Federal Court Rules, C.R.C., c. 663, R. 1733.