Leo Pharma Inc. v. Teva Canada Limited, 2014 FC 1241 

Drug: calcipotriol and betamethasone dipropionate

This is an appeal from the decision of a Prothonotary, denying leave to file reply evidence in a proceeding pursuant to the Patented Medicines (Notice of Compliance) Regulations. The Court noted that the Prothonotary was satisfied that Leo Pharma could not have anticipated

the evidence filed by Teva, that filing the proposed reply evidence would not cause substantial or serious prejudice to Teva, and that Leo Pharma was not splitting its case. However, the Prothonotary was not persuaded that the reply evidence would assist the Court or serve the interests of justice. The Prothonotary held that sur-reply by Teva would then be permitted, which would result in the potential for further motions.

The Court noted that the standard on a discretionary decision of the Prothonotary is whether the decision was clearly wrong, as being based on a wrong principle or a misapprehension of the facts.

Two paragraphs in an affidavit were the subject of the motion. The Court found no reason to interfere with the decision of the Prothonotary with respect to one paragraph because Leo Pharma should have anticipated the issue. However, the Court found that the Prothonotary erred with respect to the second paragraph. The Court held that because Leo Pharma was taken by surprise, reply was fair. The Court indicated that the Prothonotary should address the schedule and whether sur-reply was necessary.