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Third time’s a charm? Court twice refuses to accept non-compliant memorandum of fact and law

On May 22, 2015, Leo Pharma Inc. attempted to file a memorandum of fact and law that exceeded 30 pages in a prohibition application involving Teva and a generic version of Leo’s DOVOBET ointment containing calcipotriol and betamethasone.  While Leo initially maintained their memorandum did comply with the Rules, Prothonotary Tabib disagreed holding that Leo’s memorandum could not be filed in its then current form. Prothonotary Tabib provided Leo with leave to “serve and file a memorandum that complies with the Federal Court Rules no later than June 3, 2015”.

On June 3, 2015, Leo served and attempted to file a revised memorandum. Teva noted that the revised memorandum was still not compliant with the Federal Court Rules, in that it did not use the prescribed margins, contained more than 30 lines of text per page and did not use one of the three fonts permitted by Rule 65. Leo conceded that its revised memorandum was non-compliant but asked that the Court exercise its discretion to allow its revised memorandum to be accepted for filing.

On June 8, 2015 Prothonotary Tabib again directed that Leo’s revised memorandum not be accepted for filling because Leo’s memorandum was on its face non-compliant with the Rules for, among other things, having more than 30 lines of text per page when accounting for footnotes:

On its face, the Memorandum of the Applicant still does not comply with the Rules, as most pages have “more than 30 lines, exclusive of headings”, if one counts the footnotes, which are not headings. Margin discrepancies were further admitted by the Applicant.  Given the Respondent’s objections and the prima facie non-compliance, the revised memorandum cannot be accepted for filing and will be returned to the Applicant. 

Should Leo disagree with the direction, Prothonotary Tabib further directed that Leo may bring a motion for directions as to the acceptance of the record or any other motion to relieve it from compliance with the Federal Court Rules that Leo feels is appropriate.

A copy of Prothonotary Tabib’s June 8, 2015 oral direction maybe found here.

Teva was represented in this application by Aitken Klee.