Bayer AG v. Apotex Inc.
T-35-96 / T-591-96
Rothstein J.
21/8/98
6 pp.
Motion to strike replacement and reply affidavit on ground Apotex' agreement to filing thereof, consent order allowing it obtained by misrepresentation-In prohibition applications in respect of medicine Ciprofloxacin, Bayer filing affidavit of Leiva, Chilean lawyer to address issue of patent invalidity-In response Apotex filing affidavit of Huidoboro, also Chilean lawyer-After asked to file responding affidavit, Leiva representing to Bayer's Chilean agent not wishing to participate further because of ill health-Apotex agreeing to withdrawal of Leiva affidavit for ill health reasons, and to utilization of Zavala affidavit in reply and replacement-Nadon J. granting consent motion by Bayer to file Zavala affidavit-Motion to strike original Leiva affidavit, cross-examination dismissed-Apotex' alternative relief, that Leiva's second affidavit relating to ill health be admitted as part of record dismissed because usefulness in proceedings on merits not established-What occurred amounted to innocent misrepresentation by Bayer leading Apotex to agree to replacement aspect of Zavala affidavit-Possible ground for striking Leiva affidavit, replacement Zavala evidence, Apotex' reply to Leiva evidence, leaving only Huidoboro evidence, to extent not in response to Leiva's initial evidence, and Zavala evidence, to extent replied to Huidoboro's independent evidence, remaining-But difficulties with solution as: (1) Apotex refusing to withdraw any portion of Huidoboro's evidence i.e. portion in response to Leiva affidavit as well as portion independent of Leiva evidence, and (2) practical problem of segregating response, independent evidence of Huidoboro and replacement and reply evidence of Zavala-In circumstances, while initial Leiva affidavit should be struck because not appearing for cross-examination, as Huidoboro affidavit will remain in entirety, Zavala evidence should also remain-Minimizes prejudice, disruption of time-limited proceedings-In such procedural disputes in which Court required to exercise discretion having regard to fairness, expedition of proceedings, each case will turn on own facts-Important to note, as general rule, affidavits will be struck if deponent not appearing for cross-examination, replacement affidavits will not be allowed if not justifiable grounds-As Bayer's innocent representation giving rise to proceedings, no award of costs even though Bayer successful on motion.