On November 10, 2015, Justice, Hughes dismissed Amgen’s application an Order preventing the Minister of Health from issuing a Notice of Compliance for Apotex’ proposed filgrastim pre-filled syringes until the expiry of Canadian Patent No. 1,341,537 (see our previous post here). Eight days later, Amgen appealed Justice Hughes’ Judgment.
On December 7, 2015 Apotex’s filgrastim product, GASTOFIL, was approved. On January 18, 2016 Apotex brought a motion in writing seeking to dismiss Amgen’s appeal for mootness. After Amgen filed its responding motion materials, Apotex brought another motion seeking leave for file reply evidence to address a new issue that was raised in Amgen’s responding materials. While the nature of this new issue (and Apotex’ proposed reply evidence) is not known given “a sweeping confidentiality order”, Justice Stratas held that the new issue, if established by the evidence, might prompt the Court to dismiss Apotex’ mootness motion.
Rule 369 of Federal Court Rules does not contemplate the filing of reply evidence in a motion in writing. Nevertheless, Justice Stratas held that the Court does have jurisdiction to allow the filing of reply evidence under Rules 55, 3 and 4 as well as plenary powers that allow it to regulate procedures that can be triggered by procedural fairness and the need to have sufficient evidence before it to adjudicate the matter on the merits.
In an action, the plaintiff cannot split its case by adducing reply evidence that is merely confirmatory of the case in chief. Rather, citing Halford v. Seed Hawk, Justice Stratas reaffirmed that proper reply evidence must relate to new issues that were raised in the defence’s case that were not raised by the plaintiff. Additional guidance for allowing reply evidence can also be taken from Rule 312 concerning reply evidence in applications, where reply affidavits are only allowed where it is in the interests of justice, having regard to whether
- the evidence will assist the court (in particular, its relevance and sufficient probative value);
- admitting the evidence will cause substantial or serious prejudice to the other side;
- the evidence was available when the party filed its affidavits or it could have been discovered with the exercise of due diligence
The need for the Court to make a proper determination weighed heavily in Justice Stratas’ decision to grant Apotex leave to file its proposed reply evidence:
 To recap, the respondent’s motion record in the mootness motion raises an issue that the moving party, Apotex, has not raised in chief in its original motion record. For that reason, Apotex has not yet filed evidence relevant to this issue. I am persuaded that the evidence Apotex proposes to file—a brief affidavit— is relevant to this issue.
 The need for the Court to make a proper determination weighs heavily in this case. The issue raised by Amgen is material and has the potential to affect the outcome of the mootness motion. If Apotex is not permitted to file its reply evidence, the Court might decide the mootness motion on an erroneous basis and work an injustice.
Further, while acknowledging that it was a “close call” whether Apotex could have anticipated the issue in its original evidence, Justice Stratas concluded that the issue raised by Amgen was either new or has achieved an importance that Apotex could not have reasonably anticipated when its filed its original motion materials. Nor was Apotex’ failure to initially address the issue the product of unacceptable litigation tactics.
Amgen was granted the opportunity to cross-examine Apotex’ witness but, given the narrowness of the issue addressed in Apotex’s reply evidence, Amgen’s further request to file surreply evidence was denied.
A copy of Justice Stratas’ Reasons for Order may be found here.
Scott Beeser, Ph.D., is a partner at Aitken Klee LLP.