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Apotex v. AB Hassle
A-288-04
2004 FCA 255, Létourneau J.A.
7/7/04
7 pp.
Appeal from Federal Court order allowing respondent's appeal against Prothonotary's dismissal of motion to file expert affidavit evidence to demonstrate patent infringement-- Prothonotary held motion not brought promptly in proceedings under Patented Medicines (Notice of Compliance) Regulations (Regulations)--Misstated law when said respondent should have sought production of samples, proceeded to their analysis and made motion to file resulting affidavit evidence prior to scheduling cross-examinations-- Regulations, s. 6(7) allowing party to compel production of samples where such samples have been filed with Minister as part of applicant's regulatory submissions--Since appellant not submitting samples of its product to Minister, respondent could not exercise right conferred by s. 6(7) and compel production--No authority to support conclusion respondent could, should have sought production of samples at earlier stage and therefore should be blamed for delay--Respondent cannot be blamed for waiting until cross-examination of appellant's witness to compel production of samples--At best, law unclear and uncertain on issue--At worst, respondent had no right to compel production of samples prior to cross-examination--In circumstances where disclosure process envisaged in s. 6(7) of Regulations cannot be resorted to because samples not provided to Minister and where second person proceeds to testing and files affidavit evidence of result of such tests in prohibition proceedings, expediency, fairness and overall interest of justice give first person right to, immediately after such filing, seek by motion production of these samples for testing of its own--This should remedy unfortunate delay encountered in these proceedings--Appeal dismissed--Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, s. 6(7) (as enacted by SOR/98-166, s. 5).