The Court granted a motion brought by Novopharm for reply evidence. Again, evidence was reversed in this proceeding. Novopharm argued that it was forced to file its evidence in chief essentially in a vacuum without any knowledge of AstraZeneca's position as the Notice of Application was bereft of any relevant facts that would permit Novopharm to know the case it had to meet. AstraZeneca argued that this was an attempt by Novopharm to split its case and that much of the evidence was available on an earlier date.

The Court held that the Notice of Application contained bald denials and did not inform Novopharm of the evidence that might ultimately by led to support these denials. The Court also noted that in this case, the affidavit filed by Novopharm in support of the motion states that the proposed reply evidence is focused on matters which were not anticipated and provides specific details of the evidence and why it was not anticipated. This type of evidence is necessary to meet the required tests for reply evidence. In the result, the majority of the reply evidence sought to be filed by Novopharm was permitted.

The full text of the decision can be found at: http://decisions.fct-cf.gc.ca/en/2009/2009fc902/2009fc902.html