Apotex Inc. v. Canada (Minister of Health)
The appeal was dismissed because the Prothonotary reasonably concluded the proposed affidavit was not relevant and could have been introduced earlier, and the Federal Court judge was not clearly wrong in upholding that decision; the mere absence of a prejudice claim by the respondent is only one factor and does not...
Source-derived case information.
- Citation
- 2005 FCA 397
- Parties
- Appellant: Apotex Inc.; Respondent: The Minister of Health
- Court
- Federal Court of Appeal
- Jurisdiction
- Canada
- Judgment Date
- 29 November 2005
- Procedural Posture
- Appeal From Federal Court Interlocutory Order Under Federal Courts Rules / Federal Court of Appeal Decision on Appeal From Prothonotary and Federal Court Orders Denying Leave to File Supplementary Affidavit
- Outcome
- Appeal dismissed with costs
- Legal Topics
- Leave to File Evidence, Federal Courts Rules Rule 84(2), Interlocutory Appeal, Relevance and Prejudice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Apotex Inc.
Appellant
The Minister of Health
Respondent
Procedural Posture
Appeal From Federal Court Interlocutory Order Under Federal Courts Rules / Federal Court of Appeal Decision on Appeal From Prothonotary and Federal Court Orders Denying Leave to File Supplementary Affidavit
Legal Issues
- 1 Whether the Prothonotary erred in denying leave to file a supplementary affidavit under Rule 84(2)
- 2 Whether the Federal Court judge erred in upholding the Prothonotary's order
- 3 Whether absence of respondent prejudice alone requires admission of late evidence
Ratio Decidendi
The appeal was dismissed because the Prothonotary reasonably concluded the proposed affidavit was not relevant and could have been introduced earlier, and the Federal Court judge was not clearly wrong in upholding that decision; the mere absence of a prejudice claim by the respondent is only one factor and does not mandate admission of late evidence.
Court Disposition
Appeal dismissed with costs
Orders
- Appeal dismissed with costs
Full Case Text
Judgment text and source record
1 paragraphs
Apotex Inc. v. Canada (Minister of Health) Court (s) Database Federal Court of Appeal Decisions Date 2005-11-29 Neutral citation 2005 FCA 397 File numbers A-332-05 Decision Content Date: 20051129 Docket: A-332-05 Citation: 2005 FCA 397 CORAM: RICHARD C.J. LÉTOURNEAU J.A. MALONE J.A. BETWEEN: APOTEX INC. Appellant (Applicant) - and - THE MINISTER OF HEALTH Respondent (Respondent) Heard at Ottawa, Ontario, on November 29, 2005. Judgment delivered from the Bench at Ottawa, Ontario, on November 29, 2005. REASONS FOR JUDGMENT OF THE COURT BY: RICHARD C.J. Date: 20051129 Docket: A-332-05 Citation: 2005 FCA 397 CORAM: RICHARD C.J. LÉTOURNEAU J.A. MALONE J.A. BETWEEN: APOTEX INC. Appellant (Applicant) - and - THE MINISTER OF HEALTH Respondent (Respondent) REASONS FOR JUDGMENT (Delivered from the Bench at Ottawa, Ontario, on November 29, 2005) RICHARD C.J. [1] This is an appeal by Apotex Inc. of an order of Justice François Lemieux of the Federal Court upholding an order of Prothonotary Mireille Tabib denying Apotex's request for leave to file a supplementary affidavit under Rule 84 (2) of the Federal Courts Rules, in support of its motion to compel the Minister of Health to comply with an order made by Justice Yvon Pinard of the Federal Court on June 2, 2004. [2] In her decision the Prothonotary reviewed a number of factors and concluded that the proposed evidence was not relevant and that the information at issue could have been introduced by the Appellant in its earlier affidavit. She also noted that though the Respondent did not allege prejudice, that in itself did not counter-balance her other findings. In these circumstances, the Prothonotary concluded that the proposed new evidence would not be of assistance to the Court and thus serve the interest of justice. [3] Since the prothonotary's order does not raise a question vital to the final issue of the case, Justice Lemieux correctly proceeded to determine whether her order was clearly wrong (see Merck & Co., Inc. v. Apotex Inc. [2004] 2 F.C.R. 459 at paragraph 19, 2003 FCA 488; leave to appeal refused May 6, 2004, Doc. 30193 (S.C.C.)). [4] Mr. Justice Lemieux carefully reviewed the Prothonotary's decision and found no reason to intervene. [5] In support of its motion to introduce the affidavit, the Appellant relied heavily on the absence of any claim of prejudice by the Respondent. However, this is but one factor to be considered and by itself is not determinative. It does not trump all other factors. [6] The appellant has failed to demonstrate that Mr. Justice Lemieux made any reviewable error and accordingly the appeal will be dismissed with costs. "J. Richard" Chief Justice FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-332-05 STYLE OF CAUSE: Apotex Inc. v. The Minister of Health PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: November 29, 2005 REASONS FOR JUDGMENT OF THE COURT BY: Richard C.J., Létourneau and Malone J.J.A. DELIVERED FROM THE BENCH BY: Richard, C.J. APPEARANCES: Mr. Andrew Brodkin Ms. Katherine Cornett FOR THE APPELLANT/ Mr. Frederick Woyiwada FOR THE RESPONDENT SOLICITORS OF RECORD: Goodmans LLP Toronto, Ontario FOR THE APPELLANT/ John Sims Deputy Attorney General of Canada Ottawa, Ontario FOR THE RESPONDENT