On an appeal from an Order of Prothonotary Aronovitch whereby Apotex was denied leave to deliver sur-reply reports on infringement, Justice Crampton agreed that there was a sufficient basis upon which to deny Apotex leave to deliver the sur-reply reports. In particular, Justice Crampton noted that the evidence in the proposed reports (1) should have been anticipated in Apotex’ reports in-chief; (2) was either unresponsive to the BMS reports or repetitive of material in Apotex’ reports-in-chief; and (3) was unlikely to be of assistance to the Court at trial. Justice Crampton further noted his concern that if Apotex’ approach was taken in cases where the defendant has been put on notice of the plaintiffs intention to rely on s. 55.1 of the Patent Act, the Court would have to be more receptive to allowing sur-reply reports than is currently contemplated by the Rules and the general jurisprudence.

A copy of the decision is may be found at the following link:

http://decisions.fct-cf.gc.ca/en/2011/t-2078-00_33421/t-2078-00.html