Discretion Not Exercised to Reverse Order of Evidence in Patented Medicines (Notice of Compliance) Proceedings

On November 15, 2007, the Federal Court released its decision on a motion brought by the Applicant in Purdue Pharma v Pharmascience Inc et al (2007 FC 1196) to have its Notice of Compliance (NOC) proceeding specially managed and, more importantly, to have the order in which evidence was filed by the parties reversed. The motion was brought based on the recent informal discussions that have taken place between members of the Court and members of the Bar regarding this issue. In her decision, Prothonotary Tabib observed that proceedings under the NOC Regulations have become more and more complex and lengthy, primarily as a result of multiple grounds of invalidity being alleged. Applicants (first persons) have complained that they must lead their best evidence on every single allegation, whether or not Respondents (second persons) will ever lead evidence on those same allegations. Furthermore, Respondents often feel compelled to file evidence merely to undermine, contradict or attack the credibility of the Applicants' affiants, thereby exaggerating secondary issues and multiplying the number of experts involved and the time and resources expended on cross-examinations and interlocutory motions arising from the evidence. One solution the Court has proposed in informal discussions is the reversal of the order in which the evidence of the parties is filed. The Applicant, Purdue Pharma, brought its motion in the context of Federal Courts Rules 385(1)(a), 55 and 274, which grant the Court discretion to vary the sequence in which evidence is served and filed, if the Court is satisfied that it is necessary for the just, most expeditious and least expensive determination of the proceedings on the merits. While Prothonotary Tabib concluded generally that reversing the sequence in which the evidence of the parties is to be filed would help to narrow the issues in NOC cases, she ultimately decided not to order the relief requested by Purdue Pharma on the basis that such a reversal would only have its desired effect if both parties consent and co-operate, and in this case Pharmascience was opposed to the reversal. Furthermore, the matter involved issues of infringement, lack of sound prediction and inutility for which the evidence would have to have been presented in the traditional order, meaning that reversal would only have applied to evidence on some of the grounds, thereby creating a procedure completely unfamiliar to the Court and the parties. Lastly, Prothonotary Tabib chose not to exercise her discretion on the basis that the notion of reversing the order of evidence on some or all of the issues in NOC cases is still a novel idea, which respondents may not have considered when they served their Notices of Allegation. For the full text of the case, see: http://decisions.fct-cf.gc.ca/en/2007/2007fc1196/2007fc1196.html Summary by: Heather Watts