Docket: T-1259-11
Citation: 2011 FC 1377
Toronto, Ontario, November
28, 2011
PRESENT: The
Honourable Mr. Justice Hughes
BETWEEN:
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ASTRAZENECA
CANADA INC. AND ASTRAZENECA UK LIMITED
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Applicants
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and
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TEVA
CANADA LIMITED AND THE MINISTER OF HEALTH
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Respondents
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REASONS FOR ORDER AND ORDER
[1]
This is a motion on behalf of the Applicants
brought by way of an appeal from an Order of Prothonotary Aalto as Case Manager
dated November 14, 2011, for:
(a) An Order setting aside the Order
of Prothonotary Aalto dated November 14, 2011;
(b) Order for a reversal of evidence
including requiring the Respondent Teva Canada Limited (Teva) to serve its
evidence first with respect to the invalidity allegations related to Canadian
Patent No. 2,251,944 (944 patent) in accordance with Schedule “A” attached to
the Notice of Motion;
(c) Costs
of this motion below; and
(d) Such
further and other relief as this Honourable Court may deem just.
[2]
This proceeding is brought under the Patented
Medicines (Notice of Compliance) Regulators SOR/93-133. All such
proceedings are Case Managed by a Prothonotary assigned for that purpose. In
this case it is Prothonotary Aalto. The Regulations require that there be
a final disposition of such proceedings within twenty-four (24) months from
institution. Thus careful case management including co-operation between
counsel, is essential.
[3]
Often in such proceedings the order of
presentation of evidence is reversed wherein the respondent, who is often
asserting invalidity of the patent(s) at issue, puts in its case first by way
of affidavit(s). The applicant then responds. There are several precedents
where this has been ordered by a Case Management Prothonotary.
[4]
In the present case the Prothonotary did not
order reversal. The Prothonotary’s reasons make it clear that he considered
carefully the submissions made by both parties weighed them and, on balance,
determined that reversal would not be ordered. The evidence before the
Prothonotary consisted only of an affidavit of a law student in the offices of
the Applicants’ solicitors. Apparently the Applicants’ Counsel submitted to the
Prothonotary that they would limit the claims at issue in their affidavit as to
infringement. However, the Applicants did not put in the record the claims to
which their case would be limited. If the Applicants were going to limit the
claims which they would be asserting it should have clearly put this on the
record, not merely said in argument that they might do so later.
[5]
Applicants’ Counsel argued before Prothonotary
Aalto and before me that, if the Respondent Teva were to put its evidence as to
validity in first, the Applicants could, in response clearly focus their evidence
to the precise prior art and other validity matters at issue. The Prothonotary understood
this but, on balance, decided against the Applicants.
[6]
Applicants’ Counsel also argued that the
Prothonotary misconstrued some facts. Given that there were very few facts
actually in evidence on the record, what can be said is that the Prothonotary
made some conclusions based on arguments and speculations raised by the
parties. He did the best job he could given the record before him. No
overriding misapprehension of the facts was made.
[7]
This is not a case where the Prothonotary’s
decision makes a final determination of a matter vital to the issues. At best
it might be speculated that the case may be more voluminous or complex that it
should be.
[8]
Case Management Prothonotaries should be allowed
reasonable latitude to get on with the job which is a difficult one and
requiring, in many instances, a judgment call based on the record and arguments
made. Even if this Court may have come to a different result, in the absence of
fundamental error in a determination of a matter vital to an issue, the Court
should let a Prothonotary get on with the job.
[9]
This appeal should not have been brought. No
matter how disappointed the Applicants’ Counsel may have been as to
non-reversal, this is a circumstance where they should have simply got on with
the job. I am satisfied that substantial costs, $5000.00, are appropriate.
ORDER
FOR THE REASONS PROVIDED
THIS COURT’S ORDER is that:
1. The motion is dismissed;
2. The Respondent Teva is entitled to costs
fixed in the sum of $5000.00 payable by the Applicants forthwith.
“Roger T. Hughes”
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