Merck & Co. Inc. v. Apotex Inc., 2005 FC 746

Date: 20050525

Docket: T-2792-96

Citation: 2005 FC 746

Montréal, Quebec, May 25, 2005

Present:           Richard Morneau, Esq., Prothonotary

BETWEEN:

                                                           MERCK & CO., INC.,

MERCK FROSST CANADA & CO.,

SYNGENTA LIMITED,

ASTRAZENECA UK LIMITED and

ASTRAZENECA CANADA INC.

                                                                                                                                             Plaintiffs

                                                                                                          (Defendants by Counterclaim)

                                                                           and

                                                                  APOTEX INC.

                                                                                                                                           Defendant

                                                                                                                (Plaintiff by Counterclaim)

                                            REASONS FOR ORDER AND ORDER

[1]                CONSIDERING the motion at bar by the plaintiffs (collectively Merck) for an order striking out the defendant's Fresh as Amended Statement of Defence and Counterclaim dated May 13, 2002 (hereinafter Apotex' defence of May 2002) and for such further or other relief;

[2]                CONSIDERING that by Order of this Court dated May 2, 2002, Apotex was permitted to amend its Amended Amended Statement of Defence and Counterclaim dated November 17, 2000 (hereinafter Apotex' defence of November 2000). Consequently, Apotex filed its defence of May 2002.

[3]                CONSIDERING that Merck appealed the Order of May 2, 2002 which was confirmed by Noël J. on February 13, 2003;

[4]                CONSIDERING however that by Judgment dated December 22, 2003, the Federal Court of Appeal set aside these Orders insofar as they relate to amendments concerning the compound lisinopril dihydrate. As indicated by the Federal Court of Appeal, it denied the amendments described in paragraph 32 of Apotex' notice of motion which sought to retract a long standing important admission affecting several paragraphs of the Apotex' defence of May 2002, and sought to introduce an allegation that lisinopril dihydrate is not within the claims of Canadian Patent No. 1,275,350.

[5]                CONSIDERING that, at the end of the day, it flows from the Judgment of the Federal Court of Appeal and the Order of May 2, 2002 that Apotex was granted leave to serve and file an amended pleading consistent with the Judgment of the Federal Court of Appeal within ten (10) days of that Jugdment;

[6]                CONSIDERING that Apotex has not done so;

[7]                CONSIDERING that Apotex' defence of May 2002 is to be considered now to have been filed without leave of the Court and to depart, as far as the amendments described in paragraph 4 above are concerned, from Apotex' defence of November 2000;

[8]                CONSIDERING that Apotex' defence of May 2002 is vexatious and may delay the fair trial of the action, which trial is scheduled for January 2006 with experts reports in chief due for July 11, 2005;

[9]                CONSIDERING rules 221(1)(c) to (e) and 385 of the Federal Courts Rules (the Rules);

[10]            CONSIDERING, in addition, that pursuant to rule 221(1)(f), this Court has the authority to strike a pleading that is not compliant with an Order of this Court (see Telefonaktiebolaget LM Ericsson v. Harris Canada, Inc., [2002] F.C.J. No. 789 at paras. 17-8 (T.D.), O'Keefe J);

[11]            CONSIDERING that the amended pleading attached as Schedule A to Apotex' motion record in response to the motion at bar does not comply with the Order of May 2, 2002 as varied by the Federal Court of Appeal Judgment dated December 22, 2003 (the Orders);

[12]            CONSIDERING that to avoid any further motions with respect to the proper content of the amended pleading which Apotex should file and serve to ensure compliance with the Orders, the Court is of the view that pursuant to Rules 221(1)(c) to (f) and 385 it should strike Apotex' defence of May 2002 and, with the further help of Rule 53(2), deem that Apotex' Amended Fresh as Amended Statement of Defence and Counterclaim is the one attached as Schedule A to the instant Order, so that, inter alia, paragraphs 1 to 8 of said pleading correspond to paragraphs 1 to 8 of Apotex' defence of November 2000;

[13]            CONSEQUENTLY, IT IS HEREBY ORDERED AS FOLLOWS:

1.          The Plaintiffs' motion is granted as follows, with costs in favour of Merck.

2.          The Apotex' defence of May 2002 is struck out.

3.          For all intents and purposes, the Court deems that Apotex' Amended Fresh as Amended Statement of Defence and Counterclaim is the one attached as Schedule A to the instant Order.

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:

STYLE OF CAUSE:

T-2792-96

MERCK & CO., INC.

MERCK FROSST CANADA & CO.

SYNGENTA LIMITED

ASTRAZENECA UK LIMITED and

ASTRAZENECA CANADA INC.

                                                                         Plaintiffs

                                        (Defendants by Counterclaim)

and

APOTEX INC.

                                                                      Defendant

                                              (Plaintiff by Counterclaim)

PLACE OF HEARING:                                Montréal, Quebec, by Teleconference

DATE OF HEARING:                                  May 24, 2005

REASONS FOR ORDER:                          RICHARD MORNEAU, ESQ., PROTHONOTARY

DATE OF REASONS FOR ORDER:         May 25, 2005

APPEARANCES:

SOLICITORS OF RECORD: