Date: 19980615
Docket: A-294-98
(T-3197-90)
DATED AT OTTAWA, ONTARIO, Monday, June 15, 1998
PRESENT: THE HONOURABLE MR. JUSTICE J.T. ROBERTSON
BETWEEN:
APOTEX INC.
Appellant
(Plaintiff)
- and -
THE WELLCOME FOUNDATION LIMITED
Respondent
(Defendant)
- and -
NOVOPHARM LTD.
Respondent
(Plaintiff)
Docket: A-295-98
(T-2624-91)
BETWEEN:
APOTEX INC.
Appellant
(Defendant)
- and -
THE WELLCOME FOUNDATION LIMITED
and
GLAXO WELLCOME INC.
Respondents
(Plaintiffs)
- and -
INTERPHARM INC.
and
ALLEN BARRY SHECHTMAN
Respondents
(Defendants)
ORDER
The motion for an order expediting the hearing of the appeal from the decision of Campbell J. is granted on the following terms:
(1) The appeal will be heard in Ottawa on Wednesday, July 22, 1998 commencing at 9:30 a.m. (scheduled for 1 day),
(2) The appellant shall file the appeal book and its memorandum of fact and law on or before Wednesday, June 17, 1998, and
(3) The respondent shall file and serve its memorandum on or before Wednesday, July 15, 1998.
"J.T. Robertson"
J.A.
Date: 19980615
Docket: A-294-98
(T-3197-90)
CORAM: ROBERTSON J.A.
BETWEEN:
APOTEX INC.
Appellant
(Plaintiff)
- and -
THE WELLCOME FOUNDATION LIMITED
Respondent
(Defendant)
- and -
NOVOPHARM LTD.
Respondent
(Plaintiff)
Docket: A-295-98
(T-2624-91)
BETWEEN:
APOTEX INC.
Appellant
(Defendant)
- and -
THE WELLCOME FOUNDATION LIMITED
and
GLAXO WELLCOME INC.
Respondents
(Plaintiffs)
- and -
INTERPHARM INC.
and
ALLEN BARRY SHECHTMAN
Respondents
(Defendants)
Heard at Ottawa, Ontario, on Friday, June 12, 1998
Order delivered from the Bench at Ottawa, on Friday, June 12, 1998
REASONS FOR ORDER BY: ROBERTSON J.A.
Date: 19980615
Docket: A-294-98
(T-3197-90)
CORAM: The Honourable Mr. Justice J.T. Robertson
BETWEEN:
APOTEX INC.
Appellant
(Plaintiff)
- and -
THE WELLCOME FOUNDATION LIMITED
Respondent
(Defendant)
- and -
NOVOPHARM LTD.
Respondent
(Plaintiff)
Docket: A-295-98
(T-2624-91)
BETWEEN:
APOTEX INC.
Appellant
(Defendant)
- and -
THE WELLCOME FOUNDATION LIMITED
and
GLAXO WELLCOME INC.
Respondents
(Plaintiffs)
- and -
INTERPHARM INC.
and
ALLEN BARRY SHECHTMAN
Respondents
(Defendants)
REASONS FOR ORDER
(Delivered from the Bench at Ottawa, Ontario,
Friday, June 12, 1998)
ROBERTSON J.A.
[1] The appellant, Apotex Inc., seeks an order for an expedited appeal from a decision of Campbell J., dated April 24, 1998, refusing to grant an interim stay pending disposition of certain appeals from a decision of Wetston J., dated March 25, 1998. In the latter case it was found that some of the claims in the "277" patent held by the respondent, Glaxo Wellcome Inc., were valid and had been infringed by Apotex. The formal judgment ordered Apotex to deliver up for destruction infringing drugs in its possession and, inter alia, granted an injunction enjoining the manufacture of the drug in question. In seeking the interim stay of the judgment of Wetston J., Apotex argued that it would suffer irreparable harm. While that argument did not succeed before Campbell J., Apotex now seeks an expedited hearing of the appeal from that decision. By order of Stone J.A., dated June 3, 1998, the matter was set down for oral hearing.
[2] That there is a serious issue focusing on irreparable harm raised by Apotex cannot be doubted. Moreover, it does not seek to have its appeal heard to the detriment of others whose appeals have already been scheduled for hearing. In short, it does not seek to "jump the queue". This renders cases such as Unilever v. Chefaro Proprietaries Ltd., [1995] 1 W.L.R. 243 (C.A.) irrelevant to the issue at hand. In that case the English Court of Appeal made reference to its backlog of unheard appeals and to the fact that an expedited hearing of an appeal in that court has one of two effects: cancellation of a scheduled hearing or the deferral of an unscheduled appeal. At the present time, the Federal Court of Appeal is not plagued by such administrative exigencies.
[3] In the circumstances of this case, Glaxo has not established that it will be prejudiced by a truncation of the time limits prescribed by the Rules of Court if the order sought is granted. Apotex is prepared to file and serve the appeal book and its written memorandum within 5 days of this hearing. It is able to do so because the issues pursued before Campbell J. are the very ones to be pursued before this Court on appeal. Apotex is also prepared to give the respondent what I consider ample time to file and serve its memorandum. These facts should be contrasted with those outlined in the decision of McGillis J. in Kyorin Pharmaceutical Co. v. Novopharm Ltd. Kyorin Pharmaceutical Co., Ltd. v. Novopharm Ltd., 67 C.P.R. (3d) (F.C.T.D.), wherein the motion to expedite a "trial" was dismissed.
[4] For these reasons, I am prepared to grant the order for an expedited appeal on the terms outlined below. In reaching this conclusion I am cognizant of the test articulated in Clattenburg v. Canada (1986), 65 N.R. 315 (F.C.A.), for granting expedited appeals. In my respectful view, that decision has been eclipsed by the Supreme Court's decision in RJR MacDonald Inc. v. Canada (1994), 54 C.P.R. (3d) 114 (SCC), and fails to reflect the reality that this Court is frequently requested to make a panel of judges available for the hearing of an appeal in cases where the legal issue involves an allegation of irreparable harm if interim relief is not granted. Provided a timetable can be agreed to which is convenient to both the Court and counsel for the litigants, an order for an expedited appeal is usually granted.
[5] The motion for an expedited hearing of the appeal will be granted on the following terms:
(1) The appeal will be heard in Ottawa on Wednesday, July 22, 1998 commencing at 9:30 a.m. (scheduled for 1 day),
(2) The appellant shall file the appeal book and its memorandum of fact and law on or before Wednesday, June 17, 1998, and
(3) The respondent shall file and serve its memorandum on or before Wednesday, July 15, 1998.
"J.T. Robertson"
J.A.
FEDERAL COURT OF APPEAL
Date: 19980615
Docket: A-294-98
(T-3197-90)
BETWEEN:
APOTEX INC.
Appellant
(Plaintiff)
- and -
THE WELLCOME FOUNDATION LIMITED
Respondent
(Defendant)
- and -
NOVOPHARM LTD.
Respondent
(Plaintiff)
Docket: A-295-98
(T-2624-91)
BETWEEN:
APOTEX INC.
Appellant
(Defendant)
- and -
THE WELLCOME FOUNDATION LIMITED
and
GLAXO WELLCOME INC.
Respondents
(Plaintiffs)
- and -
INTERPHARM INC.
and
ALLEN BARRY SHECHTMAN
Respondents
(Defendants)
REASONS FOR ORDER
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-294-98 A-295-98
STYLE OF CAUSE: Apotex Inc. v. The Wellcome Foundation Limited et al.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: June 12, 1998
DELIVERED FROM THE BENCH BY: Robertson, J.A.
APPEARANCES:
Mr. Harry B. Radomski
Mr. David M. Scrimger for the Appellant
Mr. Peter J. Stanford
Mr. Patrick E. Kierans for The Wellcome Foundation Ltd. & Glaxo Wellcome Inc.
No one for Novopharm Ltd.
SOLICITORS OF RECORD:
Goodman Phillips & Vineberg
Toronto, Ontario for the Appellant
Ogilvy Renault
Toronto, Ontario for The Wellcome Foundation Ltd. & Glaxo Wellcome Inc. -
Hitchman & Sprigings
Toronto, Ontario for Novopharm Ltd.
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