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AB Hassle v. Apotex Inc.
T-1878-02
2003 FC 1380, Tabib P.
24/11/03
7 pp.
Motion by Apotex (respondent) for leave to file sur-reply evidence--Motion made in context of application by applicants for prohibition order--Respondent was to do what was necessary to ensure issue whether it was to be granted leave to file sur-reply evidence be determined by Court at hearing scheduled for August 19, 2003--Hearing took place before Lafrenière P.--Order issued containing no mention of request by respondent for leave to file additional evidence and ordering no such relief--Apotex contending matter not determined by Lafrenière P., that latter "indicated that he was not inclined at that time to determine"--Evidence tendered by respondent as to outcome of hearing ambiguous--Lafrenière P. did not refuse to hear motion, but, having considered material before him, concluded insufficient material upon which to make determination--Filing sur-reply evidence not right, but discretionary relief, and respondent had burden of establishing conditions existed for granting relief--Abstract of hearing of August 19, 2003 also supporting conclusion Lafrenière P. did consider Apotex's request for leave to file additional evidence, and determined material submitted insufficient--In effect, respondent's motion dismissed by Lafrenière P., without leave to reapply having been expressly granted--Motion dismissed.