PRACTICE |
Affidavits |
Abbott Laboratories v. Canada (Minister of Health)
T-1133-02
2003 FC 1512, Heneghan J.
22/12/03
9 pp.
Abbott Laboratories and Abbott Laboratories Limited (Abbott) appeal from Prothonotary's order striking certain paragraphs from further affidavits filed by Apotex Inc. (Apotex) pursuant to earlier order--Whether Prothonotary erred in disposition of Abbott's motion such that this Court should exercise discretion on de novo basis--In Eli Lilly and Co. v. Apotex Inc. (1997), 76 C.P.R. (3d) 15 (F.C.T.D.), Court identified three factors to consider when party seeking to file additional affidavit evidence: (1) will further evidence serve interests of justice; (2) will it assist Court; and (3) will it cause substantial or serious prejudice to other parties?--Here, Abbott attempting to impose technical, legalistic meaning on words "proper proceeding reply evidence" which unwarranted --Not trial and general rules concerning admissibility of evidence not applying--Prothonotary adjudicating motion to introduce further affidavits and she considered appropriate factors as established in existing case law--As to question of prejudice, Prothonotary did not require expert evidence as to prejudice--Reference to lack of expert evidence on behalf of Abbott in responding to motion must be read in relation to absence of expert evidence as to Abbott's inability to conduct same testing carried out by Apotex--No error in manner Prothonotary exercised discretion--Appeal dismissed.