Date: 20120625
Dockets: A-480-11
A-481-11
Citation: 2012 FCA 195
CORAM: NOËL J.A.
EVANS J.A.
SHARLOW J.A.
A-480-11
BETWEEN:
NYCOMED CANADA INC., NYCOMED
GMBH and
NYCOMED
INTERNATIONAL MANAGEMENT GMBH
Appellants
and
TEVA
CANADA LIMITED
Respondent
A-481-11
BETWEEN:
NYCOMED
CANADA INC
Appellant
and
APOTEX INC.
Respondent
AND BETWEEN:
NYCOMED
CANADA INC. and NYCOMED GMBH
Appellants
and
APOTEX INC.
Respondent
Heard at Toronto,
Ontario, on June 25, 2012.
Judgment delivered from the Bench at Toronto, Ontario, on June 25, 2012.
REASONS FOR JUDGMENT OF THE COURT BY: NOËL
J.A.
Date:
20120625
Dockets: A-480-11
A-481-11
Citation:
2012 FCA 195
CORAM: NOËL
J.A.
EVANS
J.A.
SHARLOW
J.A.
A-480-11
BETWEEN:
NYCOMED CANADA INC., NYCOMED GMBH and
NYCOMED
INTERNATIONAL MANAGEMENT GMBH
Appellants
and
TEVA CANADA
LIMITED
Respondent
A-481-11
BETWEEN:
NYCOMED
CANADA INC
Appellant
and
APOTEX INC.
Respondent
AND BETWEEN:
NYCOMED
CANADA INC. and NYCOMED GMBH
Appellants
and
APOTEX INC.
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Toronto, Ontario, on June 25, 2012)
NOËL J.A.
[1]
There
are two appeals from decisions of Simpson J. of the Federal Court who dismissed
the appellants appeals from earlier decisions by Prothonotary Milczynski based
on a single set of reasons. Simpson J. after conducting a de novo
review, agreed with Prothonotary Milczynski that the plea of “contributory
infringement” in the statements of defence and counterclaim filed by the
appellants had to be struck as it was plain and obvious that it would fail.
[2]
These
reasons dispose of both appeals, the original being filed in Court file
A-480-11, and a copy thereof being filed in Court file A-481-11 as reasons for
judgment in that matter.
[3]
Despite
the able submissions by Counsel for the appellants, we can detect no error in
the decision reached by Simpson J. In particular, we adopt the reasoning set
out at paragraph 27 of her reasons for holding that the decision of the Supreme
Court in Monsanto Canada Inc. v. Schmeiser, 2004 SCC 34, is not
indicative of an intention to depart from the existing precedents and to
recognize “contributory infringement” as a cause of action under the Canadian
law.
[4]
The
appeals will be dismissed with costs in each instance.
"Marc Noël"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-480-11
(APPEAL
FROM AN ORDER OF THE HONOURABLE JUSTICE SIMPSON OF THE FEDERAL COURT DATED DECEMBER
9, 2011, DOCKET NO. T-368-08)
STYLE OF CAUSE: Nycomed
Canada Inc. Nycomed GMBH and Nycomed International Management GMBH and Teva
Canada Limited
PLACE OF HEARING: Toronto,
Ontario
DATE OF HEARING: June 25, 2012
REASONS FOR JUDGMENT OF THE
COURT BY: (Noël, Evans &
Sharlow JJ.A.)
DELIVERED FROM THE BENCH BY: Noël J.A.
APPEARANCES:
|
Lindsay Neidrauer
Afif
Hamid
|
FOR
THE APPELLANTS
|
|
Andrew Skodyn
Ben
Wallwork
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
BELMORE NEIDRAUER LLP
Toronto,
Ontario
|
FOR THE APPELLANTS
|
|
HEENAN BLAIKIE LLP
Toronto,
Ontario
|
FOR THE RESPONDENT
|
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-481-11
(APPEAL
FROM AN ORDER OF THE HONOURABLE JUSTICE SIMPSON OF THE FEDERAL COURT DATED DECEMBER
9, 2011, DOCKET NO. T-1786-08)
STYLE OF CAUSE: Nycomed
Canada Inc. and Apotex Inc. AND Nycomed Canada Inc. and Nycomed GMBH and Apotex
Inc.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June
25, 2012
REASONS FOR JUDGMENT OF THE
COURT BY: (Noël, Evans & Sharlow JJ.A.)
DELIVERED FROM THE BENCH BY: Noël J.A.
APPEARANCES:
|
Lindsay
Neidrauer
Afif
Hamid
|
FOR
THE APPELLANTS
|
|
Daniel
Cappe
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
BELMORE
NEIDRAUER LLP
Toronto, Ontario
|
FOR THE APPELLANTS
|
|
GOODMANS
LLP
Toronto,
Ontario
|
FOR THE RESPONDENT
|
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