Interlocutory motion; 2009 FC 294; ramipril; March 19, 2009

Two days after the completion of the evidentiary phase of a trial on the merits, Apotex brought a motion to admit approximately 3,000 pages of evidence consisting of affidavits sworn in other Federal Court proceedings, transcripts from U.S. depositions and file history information for certain Canadian and U.S. patents.

The Court assumed, without deciding, that for the purposes of the motion the new evidence would be relevant to the issues in the case. However, the Court found that Apotex had delayed in seeking avenues to introduce this evidence orally in Court. The Court held that Apotex, as a matter of strategy, chose to try to split its case. In addition, the Court found that the documents were not reliable, as there was no evidence that the truth of the affidavits had been tested. Furthermore, the Court was not persuaded that the plaintiffs had had meaningful rights to participate in the depositions which Apotex was seeking to introduce.

Thus, the Court found that there would be prejudice to the plaintiffs and declined to admit all documents other than the file histories of two patents. The file histories were admitted as they demonstrate when documents were placed on file at the Patent Office. However, the Court noted that they do not speak to the truth of any matter contained in the documents in the file history.

Apotex had also asked the Court to issue a Commission to take the evidence of four additional witnesses in the U.S. This request was denied for a number of reasons including its timing, and the Court's holding that Apotex did not do everything in its power to persuade the witnesses to testify in person at the trial.

The full text of the decision can be found at: http://decisions.fct-cf.gc.ca/en/2009/2009fc294/2009fc294.html