Pfizer Canada Inc. v Apotex Inc. [2013 FC 1249]

Background

This is an appeal of an order by Prothonotary Aalto denying the applicants request to file two sur-reply affidavits. The affidavits were sought to be filed in connection with a PM(NOC) proceeding in response to reply affidavits filed by Apotex under a previous order.

The previous order was based upon an Apotex motion which sought to strike large portions of prior affidavits due to the perception that they were designed to split the case. The case management judge refused to strike much of the affidavits but also recognized that Pfizer had submitted most of its case in the second round of affidavits rather than appropriately in the first. The solution to this was to allow Apotex to provide reply affidavits responding to Pfizer’s second wave. Costs were awarded to Apotex on a substantial indemnity basis.

Prothonotary Aalto struck all but the introductory paragraph of one of the affidavits.

In order for the Court to overturn a discretionary decision of a prothonotary Pfizer must satisfy the Court that the question is vital to the final issue of the case or the order is clearly wrong and was based upon a wrong principle or a misapprehension of the facts.[10]

Additional discretion should be afforded case management judges who are much more familiar with the proceedings that a judge sitting on an appeal.[11]

Analysis

In this case there is nothing wrong with the decision of the Prothonotary.[13] The evidence submitted by Apotex to which Pfizer seeks to respond was to deal with evidence Pfizer had not presented at the start of the proceeding but instead waited to file until after Apotex had filed all of its evidence. The evidence which the experts of Pfizer seek to address amounts to nothing more than arguing about how much weight should be given to different pieces of statistical information and methods. Additionally cross examination is still available to Pfizer if they feel Apotex’s evidence is weak.

The proposed affidavits do not serve the interests of justice. Prothonotary Aalto’s decision and analysis contain no fault that would warrant overturning his decision.[15] The decision of Prothonotary Aalto should therefore stand and the appeal be dismissed.