Allergan Inc. v Canada (Health), [2013 FC 1165]
Background
The decision is related to a motion pursuant to Rule 312 of the Federal Courts Rules for leave to file Reply Affidavits. Leave was sought as a result of a partial reversal of evidence. A reversal of evidence is where an Applicant is entitled to take the position of the respondent – in other words the Applicant may lead their evidence in response to the evidence of the Respondent. The Applicant in these circumstances takes the traditional position of the Respondent. A partial reversal of evidence is where only one type of evidence is led in this fashion – for example “facts” or “expert testimony”.
Allergan opposed the motion on the ground that Apotex should have known and understood that documents referred to by Allergan’s experts were available and known to Apotex at the time it filed its evidence. Consequently Apotex had an opportunity to address them.
Allergan also pointed to the fact that the documents had been referred to by Mylan and Cobalt in their NOA’s – therefore Apotex should have known about them. Allergan also referred to portions of the Apotex NOA to argue that Apotex and its experts would have had to have known that the Documents needed to be dealt with.
Apotex in turn argued that Allergan provided virtually no information in its notice of application. This is in stark contrast to the position of Allergan who was aware of virtually every detail of Apotex’s case. In light of this Apotex argued it could not know what Allergan believed was relevant at the time.
Analysis
The issue raised is whether Apotex should know what the other side believes is relevant prior to the information being led by the other party. The balance the Court is forced to strike is between efficiency and fairness. If the court implements a system incentivizing inclusion of every document efficiency of court processes will suffer since inevitably irrelevant documents will be included. Here Apotex was asked to guess how Allergan would respond and lead their evidence accordingly. Apotex chose efficiency based upon their intuition respecting relevance.
From the perspective of Allergan allowing the reply would result in a ‘splitting’ of the case. The test for whether to grant additional reply affidavits in any situation considers four factors:
- The evidence will serve the interests of justice
- The evidence will assist the court
- The evidence will not cause substantial or serious prejudice to the other side
- The evidence sought to be adduced was not available prior to the cross-examination of the opponents affidavits
At the same time slavishly applying these criteria is undesirable. The criteria are derived from Atlantic Engineering where, due to ineptitude of counsel, the evidence submitted was deficient. In this context it was obvious case splitting and the Court of Appeal was right to be concerned about the additional affidavit evidence being led at such a late point in the case.
Allergan argued that the Documents must have been known to Apotex and to permit the reply would in essence water down the fourth criteria – that the information not be available.
Lawsuits should not be about what is available or can be found. Instead they are about what is relevant. Apotex may have known about the Documents but decided that the evidence they provide was not relevant at the time. To allow Allergan to subsequently shift the issue using the Documents and not afford Apotex the opportunity to respond is not in the interests of justice.
The fact that other generics have referred to the documents is of little relevance. However if a document referred to in Apotex’s own NOA were excluded there would not be a right of reply. Allergan has chosen to make the documents part of its case after Apotex has filed its material. This is not the same as traditional case splitting.
At the same time this is not an opportunity to file significantly more documents or materials not already in the record. The order is for a narrow right to reply to issues that need clarification as raised by the Allergan experts.