Apotex Inc. v. H. Lundbeck A/S, 2004 FC 728

Date: 20040519

Docket: T-575-04

Citation: 2004 FC 728

Montréal, Quebec, May 19, 2004

Present:           RICHARD MORNEAU, ESQ., PROTHONOTARY                                 

BETWEEN:

                                                                  APOTEX INC.

                                                                                                                                               Plaintiff

                                                                           and

                                                          H. LUNDBECK A/S and

                                                     LUNDBECK CANADA INC.

                                                                                                                                         Defendants

Motion by the Defendants for particulars, for production of documents and to strike.

                          [Rules 174, 181, 206 and 221 of the Federal Court Rules, 1998]

                                            REASONS FOR ORDER AND ORDER

[1]                The portions of this motion dealing with the production of documents by the plaintiff and to strike out certain passages of the statement of claim are denied.

[2]                I shall deal hereunder with the request for particulars also contained in the motion at bar.

[3]                Before making an order in respect of particulars, the Court must evaluate whether a party has enough information to be able to understand the other party's position and to prepare a responsive answer, be it a defence or a reply. (See Astra Aktiebolag v. Inflazyme Pharmaceuticals Inc. (1995), 61 C.P.R. (3d) 178 (F.C.T.D.), at 184.)

[4]                In Embee Electronic Agencies Ltd. v. Agence Sherwood Agencies Inc. et al. (1979), 43 C.P.R. (2d) (F.C.T.D.), at page 287, Marceau J. stated the extent to which the defendant is entitled to be furnished with particulars of the plaintiff's case at the pleading stage:

At that early stage, a defendant is entitled to be furnished all particulars which will enable him to better understand the position of the plaintiff, see the basis of the case made against him and appreciate the facts on which it is founded so that he may reply intelligently to the statement of claim and state properly the grounds of defence on which he himself relies, but he is not entitled to go any further and require more than that.

[My emphasis]

[5]                In its statement of claim, Apotex claims damages, an accounting of profits and disgorgement of the monetary benefits realized by the defendants (Lundbeck) as a result of Lundbeck having commenced the prohibition proceedings. Apotex founds its claims upon the statutory right of action created by section 8 of the Patented Medicines (Notice of Compliance) Regulations (the Patent Regulations) and unjust enrichment.

[6]                Since the filing of the motion, the parties have resolved between them or Lundbeck has abandoned certain requests for particulars. Therefore, I shall deal hereunder only with the particulars still at issue between the parties. For that purpose I shall follow the five categories of particulars presented by Lundbeck.

Category 1: Errors and Omissions

[7]                As far as this category is concerned, it shall be sufficient for the plaintiff to amend paragraph 21 of its statement of claim in accordance with the corrections outlined by counsel for Apotex during the hearing.

Category 2: Remedies

[8]                The particulars requested under that category are denied. In particular, I agree with Apotex that the way the statement of claim is built brings one to conclude that paragraph (c), which contains an unjust enrichment plea, is pleaded in addition and not in alternative to paragraphs (a) and (b). No further particularization is therefore required to allow Lundbeck to plead intelligently.

Category 3: Relevant Period

[9]                Under this category, Lundbeck requests particulars regarding the period for which Apotex seeks relief.

[10]            Subsection 8(1) of the Patent Regulations sets out the period in respect of which Apotex may claim compensation from Lundbeck.

[11]            In its statement of claim, Apotex has clearly indicated the date on which the NOC would have been issued but for the prohibition proceedings commenced by Lundbeck, and has clearly set out the dates on which the prohibition proceedings were commenced and then subsequently discontinued or dismissed. Accordingly, I am statisfied that Apotex has pleaded all the relevant facts to establish the relevant dates pursuant to section 8(1) of the Patent Regulations. As such, no further particulars are required in order for Lundbeck to provide a responsive defence to Apotex's allegations regarding the relevant period.

[12]            I am also satisfied that the period referable to Apotex's claim for unjust enrichment is similarly set out in the statement of claim with sufficient particularity that Lundbeck is quite capable of making an intelligent response thereto.

[13]            No particulars are required under this category.

Category 4: Direction and Control

[14]            For the reasons set out in paragraphs 53 to 55 of Apotex's written representations filed in response to the motion at bar, no particulars are required under this category.

Category 5: Damages

[15]            The only particular to be provided under this category is with respect to paragraph 27 of Apotex statement of claim. Apotex shall particularize the other products to which it is referring at the end of said paragraph 27.

Conclusion

[16]            Apotex shall provide the particulars discussed above under categories 1 and 5 by incorporating them in an amended statement of claim to be filed and served on or before June 3, 2004.

[17]            Lundbeck's motion is otherwise denied.

[18]            Lundbeck shall serve and file its statement of defence on or before July 5, 2004.

[19]            As I see Apotex the successful party on the motion at bar, costs on this motion are awarded to Apotex.

                                     FEDERAL COURT

                              SOLICITORS OF RECORD

DOCKET:

STYLE OF CAUSE:

T-575-04

APOTEX INC.

                                                                         Plaintiff

and

H. LUNDBECK A/S

and

LUNDBECK CANADA INC.

                                                                   Defendants

PLACE OF HEARING:                                 Montréal, Quebec

DATE OF HEARING:                                   May 17, 2004

REASONS FOR ORDER:                           Richard Morneau, Prothonotary

DATE OF REASONS FOR ORDER:          May 19, 2004

APPEARANCES:

SOLICITORS OF RECORD: