Date:
20080418
Docket:
T-1563-07
Citation:
2008FC513
Ottawa, Ontario, Friday,
this 18th day of April 2008
PRESENT: MADAM PROTHONOTARY
MIREILLE TABIB
BETWEEN:
ELI LILLY CANADA INC.,
Applicant
-and-
NOVOPHARM LIMITED and
THE MINISTER OF HEALTH
Respondents
-and-
ELI LILLY AND COMPANY
Respondent Patentee
REASON
FOR ORDER AND ORDER
[1]
The matter before me probes the boundaries of the application of the
concept of abuse of process in the context of proceedings under the Patented
Medicines (Notice of Compliance) Regulations, SOR/93-133 as amended, (the “Regulations”),
as established in Sanofi-Aventis Inc. v. Novopharm Ltd., 2007 FCA 163.
In particular, the motion before me brings up for determination whether abuse
of process can be found where the alleged abuse arises out of a prior decision
of the Court from which an appeal is currently pending. For the reasons given
below, I have come to the conclusion that it is not an abuse of process for
Lilly to prosecute this application whilst it is actively pursuing an appeal of
a prior, unfavorable decision against another generic.
The facts:
[2]
The Respondent, Novopharm Limited (“Novopharm”) served on the Applicant,
Eli Lilly Canada Inc. (“Lilly”) a notice of allegation in relation to its
proposed raloxifene hydrochloride drug and, inter alia, Lilly’s Patent
no. 2,101,356 (the ‘356 Patent). Novopharm’s NOA in respect of the ‘356 Patent
includes allegations of non-infringement, as well as allegations of invalidity,
citing approximately twelve grounds of invalidity, including lack of sound
prediction.
[3]
Lilly instituted the present application for a prohibition order,
pursuant to section 6(1) of the Regulations, on August 24, 2007; Lilly’s
application takes issue only with Novopharm’s allegations regarding the ‘356 Patent.
[4]
On February 5, 2008, Justice Roger Hughes of this Court issued a
judgment in Court file T-1364-05, another prohibition application involving
Lilly and the ‘356 Patent, but with Apotex, rather than Novopharm as a respondent.
The decision is reported as Eli Lilly Canada v. Apotex Inc. et al., 2008
FC 142 (hereinafter the “Apotex decision”). In that case, Apotex had
made the same allegation of invalidity of the ‘356 Patent for lack of sound
prediction as is made by Novopharm in the present matter. The Court, in the Apotex
decision, held that Apotex’s allegation of lack of sound prediction was
justified, and on that basis, dismissed Lilly’s application.
[5]
Before the delays for appealing the Apotex decision had even
expired, Novopharm served and filed the within motion, seeking the dismissal of
Lilly’s application pursuant to section 6(5)(b) of the Regulations.
Novopharm relies on the Federal Court of Appeal’s decision in Sanofi-Aventis,
supra, to the effect that it is an abuse of process for a first person, having
failed in a previous application to establish that an allegation of invalidity
was not justified, to re-litigate the same allegation of invalidity when made
in a second application by a different generic.
[6]
By the time the motion was heard, Lilly had already filed a notice of
appeal of the Apotex decision. Apotex has not yet received an NOC for
its raloxifene hydrochloride drug, and I understand that there remain
outstanding prohibition applications relating to other patents listed against
the relevant drug product that would prevent Apotex from receiving an NOC
before the appeal is heard. The situation is the same in Novopharm’s case: a
dismissal of this application will not automatically pave the way for the
issuance of an NOC to Novopharm, as other relevant patents are currently the
subject of prohibition applications.
The parties’ positions:
[7]
Lilly concedes that, but for the pending appeal, the facts of this
matter are on all fours with the situation which existed in Sanofi-Aventis;
Lilly further concedes that if, after all avenues of appeal have been
exhausted, the Apotex decision is maintained, then the present
application would indeed be an abuse of process and should properly be
dismissed. It submits, however, that this application cannot be declared an
abuse of process and dismissed unless and until all avenues of appeal of the Apotex
decision have been exhausted.
[8]
Novopharm, for its part, does concede that if the Apotex decision
were to be eventually overturned on appeal, then any determination that the
present application was an abuse of process could no longer stand, and that
Lilly would then have recourse to have such a decision set aside (the precise
procedural means to such redress was not identified, but use of Rule 399(b) was
suggested). Novopharm argues, however, that the decision of this Court in Sanofi-Aventis
Canada Inc. v. Novopharm Ltd., 2006 FC 1135 (hereinafter, “Sanofi-Aventis
(FC)”, to distinguish it from the Court of Appeal decision upholding same), is
determinative of the issue, and that a prior judgment of the Court is “final
and binding” for the purpose of the principles of abuse of process
notwithstanding ongoing appeals. It says it should not be made to await the
outcome of all possible avenues of appeal, as this would create unnecessary
delays, duplicative litigation and a real risk of inconsistent decisions.
[9]
Thus, the sole issue before me is whether the principles set out in the
Court of Appeal’s decision in Sanofi-Aventis apply regardless of pending
appeals.
Are there binding precedents
on this issue?
[10]
The first question to be considered is whether, as argued by Novopharm,
it has indeed been determined in Sanofi-Aventis (FC) that it is an abuse
of process for a first person to proceed with a prohibition application, having
failed on an allegation of invalidity in an earlier application, even when the
decision in that earlier application is under appeal. It is important, in
answering that question, to consider the litigation history in Sanofi-Aventis.
[11]
That case concerned the drug ramipril and Canadian Patent No.
1,341,206. Novopharm had alleged that the ‘206 patent was invalid, inter
alia, on the basis of lack of sound prediction. A similar allegation had
already been made by Apotex and challenged by Sanofi-Aventis in a previous
prohibition application. By Order dated September 20, 2006, the Federal Court
found that Apotex’s allegation was justified. Sanofi-Aventis’ appeal of that
decision was dismissed by the Federal Court of Appeal on February 13, 2006. On
March 15, 2006, Novopharm brought a motion to dismiss the application that had
been brought against it by Sanofi-Aventis on the basis of res judicata
or issue estoppel, and that is was redundant, scandalous, frivolous or
vexatious or otherwise an abuse of process.
[12]
The motion was first heard by Prothonotary Milczynski, and dismissed by
order dated May 8, 2006. At that time, Sanofi-Aventis had filed an application
for leave to appeal to the Supreme Court the earlier, unfavourable decision in
the Apotex application, and the leave application was still pending. Relying
on the Supreme Court of Canada’s decision in Toronto (City) v. C.U.P.E.,
local 79, 2003 SCR 63, [2003] 3 S.C.R. 77, my colleague held that
Novopharm’s motion was premature, as the principles of res judicata,
issue estoppel and abuse of process required that there be a final decision,
and that a decision is only final when all avenues of review or appeal have
been exhausted or abandoned.
[13]
On appeal from that decision, Justice Tremblay-Lamer criticized my
colleague’s decision in that regard (Sanofi-Aventis (FC) at par. 18):
“[18] Further, Prothonotary
Milczynski's May 8, 2006 Order was in my view clearly wrong in finding that a
decision is only final for the purposes of paragraph 6(5)(b) of the Regulations
when all available appeals have been exhausted. I agree with Novopharm that the
Supreme Court of Canada's statement in Toronto (City) v.
Cupe, [2003] 3 S.C.R. 77
on which the prothonotary relied, is obiter and
cannot displace, the fundamental rule, which in my view, is that a court order
stands and is final and binding unless and until it is reversed on appeal. (Wilson v. The Queen, [1983] 2 S.C.R. 594;
Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835
at 871; Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460
at para. 19; Dableh v. Ontario Hydro, [1994] O.J. No. 2771
(Ont. Gen. Div.) at para. 9). Further, the potential for inconsistent judgments
may be resolved with the possibility of obtaining a stay of an execution of a
judgment until the leave application from the Supreme Court of Canada has been
decided. In the present case, however, the issue is moot as leave to appeal has
been denied by the Supreme Court of Canada.”
[14]
However, I note that just as the passage of Toronto v. C.U.P.E.
relied upon by the Prothonotary was held to be obiter, Justice
Tremblay-Lamer’s comment as to the finality of decisions for the purposes of
Section 6(5)(b) when an appeal is pending is also obiter, as she herself
recognized that that issue had become moot when it came to her, leave to appeal
to the Supreme Court having then been denied. I therefore do not consider that
the dictum of the Court in Sanofi-Aventis (FC) stands as a
binding determination of law on that issue.
[15]
Further, I note that Justice Tremblay-Lamer’s conclusions in Sanofi-Aventis
were based on her view that subsequent judges hearing prohibition
applications would be bound by earlier decisions on the same allegations. The
emphasis she put on the final and binding nature of decisions, even pending appeal,
is to be understood in that context. However, the Federal Court of Appeal in Sanofi-Aventis
specifically disagreed with the Judge’s analysis that the proceedings were
doomed to fail because the previous decision would have been binding in
subsequent applications (at par. 29 and 30):
“[29] In Tremblay-Lamer J.'s view, any court hearing
Sanofi-Aventis' present application would be bound by Mactavish J.'s decision
in the Apotex case. She therefore concluded the application was an abuse of
process because it was "clearly futile" and that it was "plain
and obvious" that it would have no chance of success.
[30] While I agree with the
motions judge that Sanofi-Aventis' application is an abuse of process, I must
respectfully disagree with her conclusion that the reason for this finding is
that Mactavish J's decision, which was upheld by the Court of Appeal, would be
binding on the applications judge.”
[16]
In the Court of Appeal’s analysis, it is not necessary that the earlier
decision be binding on subsequent judges in order for re-litigation to
constitute an abuse of process. Thus, the binding nature of a decision, even
pending appeal, does not form the basis of the application of the principles of
abuse of process in such cases, and may even be irrelevant to the analysis in
some cases.
[17]
Finally, it is clear that the question of whether a pending
appeal prevents the first decision from being regarded as “final” or “binding”
for the purpose of res judicata, issue estoppel or abuse of process is
not well settled at law, and is the subject of many apparently conflicting
decisions.
[18]
I am therefore satisfied that there currently is no clear, binding precedent
on this delicate issue.
The
relevance of the pending appeal:
[19]
It seems to me that the question of whether a decision under appeal
should justify the dismissal of a second proceeding on grounds of abuse of
process must, in all cases, be informed by a consideration of whether the
outcome of the appeal would have any bearing on the first decision’s effect on
the second proceeding. For example, in a case of abuse of process by
re-litigation of the same issues between the same parties, where it is the mere
fact of multiple duplicative proceedings that gives rise to the abuse, the
resolution of the appeal, irrespective of the result, will not generally lessen
the abusive nature of the second proceeding. However, if, as here, the result
of a successful appeal would be to void the first decision’s effect as a cause
of abuse of process in the second proceeding, a dismissal of the second
proceeding as an abuse of process may be premature and lead to both injustice
to the parties and unnecessary litigation to redress the injustice.
[20]
One such example would be where the jurisdiction of the Court to render
the initial decision is challenged on appeal. A second proceeding, involving
the same issues in another forum, may well be an abuse of process assuming the
validity of the first decision, but would clearly not be abusive if the first
Court was found to have lacked jurisdiction. The fact situation in Toronto
v. C.U.P.E., supra, also provides an example of how the results of a
pending appeal could affect the Court’s conclusion as to the abusive nature of
the second proceeding. There, an employee previously convicted of sexual
assault was subsequently fired as a result of the assault. The employee’s
grievance of the dismissal, in which he sought to challenge the employer’s
allegation of assault, was held to be an abuse of process in light of the prior
conviction. There is no doubt in my mind that, had the employee’s criminal
conviction been appealed and reversed, his challenge as to whether or not the
alleged abuse had taken place could not have been found abusive. In this
light, Justice Arbour’s express mention of the fact that the employee had
exhausted all his avenues of appeal of the conviction, at par. 56 of the
decision in C.U.P.E., is likely significant.
[21]
In the case at bar, both parties have expressly recognized that the
outcome of Lilly’s appeal of the Apotex decision would indeed affect the
within proceedings: Lilly has expressly admitted that if the Apotex
decision was ultimately upheld or was still standing when this application came
for hearing on the merits, this application would stand to be dismissed. Novopharm
for its part concedes that a successful appeal by Lilly would void the effect
of the Apotex decision as grounds for dismissal for abuse of process.
Thus, it is plain that the fact that an appeal of the Apotex decision
has been filed and is being prosecuted cannot be ignored in determining whether
this application should be dismissed as an abuse of process.
The effect of the pending
appeal in light of the considerations set out in Sanofi-Aventis:
[22]
The Court of Appeal’s decision in Sanofi-Aventis does, in my
view, stand as a determinative statement that an attempt by a first person to
re-litigate in a prohibition application allegations of invalidity that have
already been determined to be justified can amount to an abuse of process, even
though the second proceeding involves a different generic. That said, it is
equally clear that the Court of Appeal did not determine that every prohibition
application involving the same patent must be deemed an abuse of process and
dismissed as such so soon as the Court has dismissed a previous one on an
invalidity issue. Not only did the Court of Appeal proceed by considering the
specific circumstances of the case before it in light of the principles
enunciated by the Supreme Court in Toronto v. C.U.P.E., to determine
whether they amounted to abuse of process, but it also considered whether the
application of these principles in the circumstances would give rise to
unfairness. It further clearly held that each case must be considered on its
own facts, and that a determination in each situation requires balancing the
effect of a proceeding on the administration of justice against the unfairness
to a party from precluding it from bringing forward its case:
“[40] While
it is important in each case to ensure the application of the doctrine
of abuse of process does not give rise to unfairness in the circumstances,
in my view, no such unfairness would result in the present case.”
(…)
“[50] […]
In each situation, it is necessary to balance the effect of a proceeding
on the administration of justice against the unfairness to a party from
precluding it from bringing forward its case.”
(Emphasis
mine)
[23]
As mentioned above, the Court of Appeal’s analysis proceeds from the
clear understanding that an earlier decision between a first person and a
generic is not binding or determinative of the issues in a subsequent
litigation involving another generic (Sanofi-Aventis, par. 31 and 38),
and that it is indeed possible that the first person could be successful in a
second application even if it failed in an earlier one. The Court found that
it was that very likelihood that would threaten the integrity of the judicial
process and thus give rise to an abuse of process (at par. 49). As for the
fact that the application of the doctrine of abuse of process would deprive the
applicant of that very possibility, the Court of Appeal held that there was no
unfairness since the applicant retained its right to seek redress against
subsequent generics through an infringement action. Other key factors
considered by the Court in finding abuse in that case were the strain which
proceedings under the Regulations put on the scarce resources of the
Court, and the fact that the negative consequences of possible inconsistent
results in repetitious NOC litigations are not outweighed by the corresponding
benefit of a more accurate result (at par. 36 and 37).
[24]
How then do these concerns inform the application of the doctrine of
abuse of process to the circumstances of the case before me?
a) Possible inconsistent
judgments:
[25]
While Lilly’s written representations are not entirely clear on that
point, counsel for Lilly at the hearing made it quite clear that Lilly does not
intend to pursue in this application a determination in respect of the
allegation of lack of sound prediction different from that reached by Justice
Hughes in the Apotex decision unless Justice Hughes’
determination has been overturned on appeal at the time of the hearing.
[26]
More specifically, this means that if, by the time this application is
heard, the Apotex decision as to lack of sound prediction has been
reversed on appeal, then Lilly does intend to pursue a determination that this
allegation is not justified. Indeed, it would not be an abuse of process for
it to do so in those circumstances. If, on the other hand, at the time of
hearing, the Apotex decision remains effective and binding pending
outstanding appeals, Lilly would concede to the hearing Judge that, in the
Court’s discretion, the application should either then be dismissed as an abuse
of process, or, if heard, determined so that it would follow the Apotex
decision on the sound prediction issue, with or without the Judge pronouncing
on the other allegations of the NOA, so that Lilly’s rights of appeal continue
to be preserved pending a final disposition of the Apotex decision.
Needless to say, Lilly’s representations included the understanding that this
application would immediately be discontinued if the Apotex decision was
upheld with all avenues of appeal exhausted.
[27]
Lilly submits that in view of these representations, there is in fact no
risk of inconsistent judgments if this matter is allowed to continue until all
avenues of appeal of the Apotex decision are exhausted. Lilly’s position
in this matter stands in contrast with the situation that existed in Sanofi-Aventis.
In that case, Sanofi-Aventis having failed through all avenues of appeal to
have the earlier decision overturned, specifically wished to pursue the second
proceeding with the sole aim of reaching a different result. Lilly’s position
and aim here does not lead to the possibility of conflicting judgments. To the
extent Lilly intends to dispute the correctness of the Apotex decision,
it intends to do so by way of appeal of that order, as is its right and is
proper.
[28]
On careful consideration, it is Novopharm’s position which, if adopted,
is more likely to lead to inconsistent judgments and to threaten the integrity
of the administration of justice: The dismissal sought by Novopharm on this
motion, if it would at this time achieve a consistency of result between
Lilly’s first application against Apotex and the present one, could well in
future prove to be at odds with the ultimate results in the Apotex matter,
should Lilly’s appeal be successful. Worse yet, such an outcome would put the
Court in the unenviable and even embarrassing position of having to backtrack
on its earlier determination that this proceeding constitutes an abuse of
process, should the Apotex decision be overturned on appeal.
[29]
I therefore find that allowing Lilly’s application to proceed pending
the appeal of the Apotex decision would not lead to the risk of
inconsistent judicial decisions in the circumstances of this case.
[30]
My conclusion, that allowing this application to proceed at this time
would not likely lead to the possibility of inconsistent results, would appear
to preclude a finding of abuse of process. Nevertheless, for the sake of
completeness, it is appropriate to consider the other factors held to be
relevant in Sanofi-Aventis, including whether the dismissal sought by
Novopharm in this case could give rise to unfairness in the circumstances.
b) Unfairness:
[31]
I note that the Court of Appeal in Sanofi-Aventis found that
precluding a first person from pursuing a prohibition proceeding amounting to
abuse does not result in unfairness to an innovator, because relief against the
generic against whom prohibition proceedings are curtailed remains available in
the form of an action for infringement. The situation here is no different,
and that form of unfairness does not arise.
[32]
However, unfairness of another kind would arise.
[33]
Despite their summary nature, decisions of the Federal Court in proceedings
under the Regulations are subject to appeal as of right. The only
circumstances in which this right of appeal can be curtailed is where,
following a dismissal, an NOC is issued to the generic, at which point the
appeal may be declared moot. As mentioned above, it appears that other pending
prohibition applications will likely prevent the issuance of an NOC to Apotex
until the appeal is determined. The same would be true for Novopharm if this
motion were granted.
[34]
To dismiss the within application as abusive even while Lilly is
exercising its right to challenge the correctness of the Apotex decision
by way of appeal would run the risk of depriving Lilly of the benefit of its
right of appeal as to the merits of the Apotex decision.
[35]
If successful on appeal, Lilly will obtain a prohibition order against
Apotex, and will not need to pursue relief by way of action. Although
Novopharm concedes that Lilly would then likely be able to set aside a
dismissal order in this matter – assuming Novopharm has not by then obtained
its NOC – the 24 month window of opportunity to prosecute this application to a
prohibition order afforded by the statutory stay will have shrunk to
insignificance. Novopharm would not, at the hearing before me, either commit
to a consent revocation of a dismissal order in the event of a reversal of the Apotex
decision, nor to an extension of the 24-month stay to allow the determination
of this application in such an event.
[36]
While neither party argued the wider issue of fairness to other generic
or non-parties, it bears noting that a summary dismissal of the present
application would hardly be fair to Apotex either. Indeed, Apotex would remain
bound to defend the merits of Justice Hughes’ decision on appeal and be exposed
to a prohibition order, while Novopharm would gain the benefit of Justice
Hughes’ decision, without the scrutiny of appellate review on the merits.
Novopharm may further stand to get a “free pass”, despite a possible reversal
of the Apotex decision, if it should happen to obtain its NOC before a
dismissal order can be reversed or before the merits of this application can
subsequently be determined.
[37]
Nor do I find that there can be any unfairness to Novopharm in allowing
this application to continue. Concerns about the unfairness to a second
generic of having to litigate the merits of a prohibition proceeding where
another generic has successfully defended a similar application do not form
part of the factors mandated to be considered by the Court of Appeal in Sanofi-Aventis.
To the extent prejudice to a party forced to re-litigate an issue already
decided has been considered, it has only been when that litigant was a party to
the prior proceeding. Novopharm has not been a party to earlier litigations
involving this patent, and is not being “twice vexed” by this application. To
the extent the ongoing litigation proves to have been in vain in the event the Apotex
decision is finally upheld on appeal, Novopharm may seek relief by way of
costs.
[38]
Further, I do not accept Novopharm’s argument to the effect that it
would be unfair for it to be made to wait until the exhaustion of all the
avenues of appeal in the Apotex matter before being able to rely on the Apotex
decision.
[39]
Novopharm is not being made to wait for anything. It has no right in
principle to be put on an equal footing with Apotex, or any other generic, with
respect to the effective result of a prohibition application and the issuance
of an NOC. It has no entitlement to the same result as obtained by Apotex, or
to benefit from it. The principles of abuse of process, as analyzed and
applied by the Court of Appeal in Sanofi-Aventis, put the emphasis first
and foremost on the interests of the administration of justice, and not on any
concept of fairness to other generics.
[40]
Novopharm chose the timing for serving its Notice of Allegation, and
chose to not restrict itself to allegations of lack of sound prediction. Even
while claiming entitlement to the benefit of the Apotex decision, it
chose to keep in reserve for further litigation, if the Apotex decision is
ultimately overturned, all the allegations made in its NOA, including
re-litigating lack of sound prediction on the basis of better evidence than led
by Apotex. Novopharm does not have to do so. It is open to it, if it wishes
to gain the benefit of the Apotex decision without delay, to withdraw
all allegations other than lack of sound prediction, and to join issue with
Lilly on the basis of Justice Hughes’ decision. To the extent a hearing on the
merits would still be necessary, it can be held promptly, and in an eventual
appeal, Novopharm will be in step with Apotex, if that is where fairness lies.
To the extent Novopharm chooses to exercise its right to the longer, but more
complete path to the resolution of its NOA, section 8 of the Regulations
affords relief for losses suffered from resulting delays in obtaining its NOC. Novopharm
cannot complain of the unfairness of the natural consequences of the choices it
makes.
c) The drain on judicial
resources:
[41]
Proceedings under the Regulations do consume a disproportionate
amount of judicial resources, not only in terms of hearing time on the merits,
but in terms of interlocutory incidents and case management. Clearly, allowing
the matter to proceed will represent a burden on the Court’s time and
resources, even if the issue of lack of sound prediction is not to be litigated
with a view to contradicting the results in the Apotex matter.
[42]
Yet, the possibility that the Apotex decision could be reversed
on appeal must be taken into consideration, along with what would then happen
to this proceeding. As recognized by Novopharm, there would likely be a motion
to set aside the dismissal order followed by a full litigation of all
allegations raised in this application. Not only would the burden on the Court
not be avoided, but the burden would be magnified by the additional pressure of
having to process the application to a determination in a fraction of the usual
24 month period. The drain on judicial resources would likely be worse. In
the circumstances, I doubt the desire to preserve judicial resources, when they
stand to be expended in any event, justifies a finding of abuse of process in
this case.
d) The benefit of a more
accurate decision:
[43]
As stated by Justice Arbour in Toronto v. C.U.P.E. (at par. 52):
“(…) proper review by way of
appeal increases confidence in the ultimate result and affirms both the
authority of the process as well as the finality of the result.”
[44]
Not only is there no real risk of inconsistent judgments, but allowing
the possibility that proper review of the Apotex decision by way of appeal
could occur before this matter is ready for hearing on the merits would in fact
add to the eventual determination of this matter the benefit and certainty of a
more accurate result, as tested by appellate review. I therefore cannot find
that this proceeding constitutes an abuse of process at this stage, in these
circumstances.
Conclusion:
[45]
Lilly is seeking a review of the earlier decision in the Apotex matter
by way of appeal; this appeal is likely to be determined before the hearing of
this application on its merits and before either Apotex or Novopharm is in a
position to receive an NOC. In the circumstances, I am satisfied that Lilly’s
prosecution of this application is not an attempt to improperly re-litigate the
result of the Apotex matter in the hopes of obtaining a different result. It
is not an abuse of process, but an appropriate exercise of the process provided
under the Regulations, which is consistent with the exercise of the
right of appeal afforded to it in respect of the Apotex decision.
[46]
I would add that, were it not for the particular nature of prohibition
proceedings under the Regulations, and in particular, the constraints
imposed on the parties and the Court by the 24 month stay within which these
proceedings operate, the appropriate course of action in the circumstances would
have been to stay this application pending the determination of the appeal in
the Apotex matter. Indeed, I note that in the case of Dableh v. Ontario
Hydro, [1994] O.J. 2771, where abuse of process by re-litigation was found
to exist “unless and until” a pending appeal of a previous decision was
successful, the Court did not order the dismissal of the action, but merely
stayed the action pending disposition of the appeal. Unfortunately, this Court
cannot extend the 24-month period without the parties’ consent, or a finding
that the respondent has failed to reasonably cooperate in the prosecution of
the application. Neither is a given in this matter. As a result, staying this
application pending determination of the appeal in the Apotex matter would
potentially lead to prejudice to both parties, as well as increased and
unwarranted pressure on the Court’s resources should Lilly’s appeal be
successful. This leaves as sole options the dismissal of the application or
its continuation pending appeal. Of the two, I am convinced that the latter is
the lesser evil to the interests of the parties and of the administration of
justice.
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