After cross-examinations had taken place, and approximately one week before the application record of Sanofi-Aventis was due, Riva brought a motion for leave to file further evidence. The Prothonotary granted leave, and the Trial Division overturned that decision.
In its NOA, Riva stated that its product monograph would include a disclaimer that its products will not be used for the indications covered by the patents at issue. It filed an affidavit in this regard. On cross-examination, that witness confirmed that the latest version of the product monograph had not been produced. Prior to that cross-examination, counsel for Sanofi-Aventis had requested that the witness bring all versions of the proposed product monograph to the cross-examination. This request was refused.
Sanofi-Aventis successfully brought a motion to compel production of the product monograph. However, when the product monograph was produced, Riva produced it with comments from its witness. Riva subsequently agreed that those comments should not have been part of the product monograph, however, Riva then sought leave to file a further affidavit.
The Court found that this affidavit was improper as it included comments that related directly to statements in the NOA, but were not addressed in Riva's previous evidence on the merits. Thus, Riva appeared to be splitting its case at a late stage of litigation, after cross-examinations had been completed.
The full text of the decision can be found at: http://decisions.fct-cf.gc.ca/en/2007/2007fc1317/2007fc1317.html