Prior to a case management conference within a streamlined case, the Prothonotary ordered the parties to make submissions at the conference on the question of whether a date should be set after which the parties required either consent of the other party or leave of the Court to serve a supplementary affidavit of documents or a corrected or completed information in answer to a discovery question. Counsel for Sanofi agreed to the measure, but Apotex objected saying it was unnecessary and if a dispute arose it could be settled at trial.

The Prothonotary acknowledged that late disclosure of documents or information can often prejudice the other party and although the Federal Court Rules were designed to prohibit “trial by ambush” the late disclosure of documents or information could effectively achieve the same result. She then explained that the usual remedy in a situation like that was sometimes inadequate - the receiving party wishing to object to the late disclosure of documents or information was often required to do so at trial. The result of this was that – if justice between the parties required the late evidence to be accepted – often the trial would have to be adjourned to allow for further discoveries or additional expert reports.

The Prothonotary made an order setting deadlines after which the parties required either consent of the other party or leave of the Court to serve a supplementary affidavit of documents or a corrected or completed information in answer to a discovery question. Her stated objective was to ensure, as far as possible, that disputes as to the disclosure of documents or information would be dealt with in a timely fashion. Her intention was to promote early identification and disposition of issues of admissibility related to late disclosure. This would free up trial time and possibly avoid adjournments.

In choosing an applicable date, the Prothonotary elected for a date that would roughly coincide with the date on which the last of the rebuttal expert reports would be served and filed. She reasoned her choice by explaining that by this date the parties should know with great precision on what documents and information they might wish to rely on at trial and so fully appreciate the consequences of any incomplete and inaccurate disclosures they might have made.

For more information, please see the following link:

http://decisions.fct-cf.gc.ca/en/2010/2010fc481/2010fc481.html