Date: 19980617
Docket: A-673-97
CORAM: STRAYER, J.A.
McDONALD, J.A.
HENRY, D. J.
BETWEEN:
NIDEK CO., LTD.
Appellant
(Defendant)
- and -
VISX INCORPORATED
Respondent
(Plaintiff)
HEARD at Toronto, Ontario, Wednesday, June 17, 1998.
JUDGMENT delivered from the Bench at Toronto, Ontario, Wednesday, June 17, 1998.
REASONS FOR JUDGMENT BY: STRAYER, J.A.
Date: 19980617
Docket: A-673-97
CORAM: STRAYER, J.A.
McDONALD, J.A.
HENRY, D. J.
BETWEEN:
NIDEK CO., LTD.
Appellant
(Defendant)
- and -
VISX INCORPORATED
Respondent
(Plaintiff)
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario
on June 17, 1998)
STRAYER, J.A.
1 We are all of the view that this appeal should be allowed. In our opinion the Associate Senior Prothonotary correctly concluded that whether subsection 55.2(1) of the Patent Act would provide a defence in the circumstances of this case, as alleged in paragraph 14 of the Third Amended Statement of Defence and Counterclaim, is a matter for trial. We can see no error of principle or misapprehension of the facts in his conclusion. It appears to us that there are arguable issues of mixed fact and law arising out of paragraph 14 which are appropriate for trial and not for determination on a motion to strike.
2 It follows that we believe that the learned motions judge erred in setting aside the decision of the Associate Senior Prothonotary on a matter of construction of the statute. The authority which he relied on, the decision of the Trial Division in Apotex Inc. v. Canada (A.G.) (1996) 71 C.P.R. (3d) 166 did not, in our view, directly deal with the issue involved in the present case. It involved a pharmaceutical patent and it did not purport to determine the scope of subsection 55.2(1) upon which the defendant relies here. The scope to be given subsection 55.2(1) remains in our view an arguable issue and, as applied here, potentially one of mixed law and fact. In the circumstances we believe it was not open to the motions judge to set aside the decision of the Associate Senior Prothonotary on a question of law and exercise de novo his own discretion.
3 In so concluding we should not be taken as determining the scope of
subsection 55.2(1) nor its potential application to the present case. Those matters are best left for trial.
4 The appeal will therefore be allowed, the order of the motions judge set aside, and the order of the Associate Senior Prothonotary restored. Costs are awarded to the appellant here a
and below
"B.L. Strayer"
J.A.
Names of Counsel and Solicitors of Record
DOCKET: A-673-97
STYLE OF CAUSE: NIDEK CO., LTD.
- and -
VISX INCORPORATED
DATE OF HEARING: JUNE 17, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: STRAYER, J.A.
Delivered at from the Bench at Toronto, Ontario
on Wednesday, June 17, 1998
APPEARANCES:
Mr. Roger Hughes, Q.C.
Mr. Arthur Renaud
For the Appellant
Mr. James D. Kokonis, Q.C.
Mr. A. David Morrow
Mr. Dennis S.K. Leung
For the Respondent
SOLICITORS OF RECORD:
Sim, Hughes, Ashton & McKay
6th Floor
330 University Avenue
Toronto, Ontario
M5G 1R7
For the Appellant
Smart & Biggar
900 - 55 Metcalfe Street
Ottawa, Ontario
K1P 5Y6
For the Respondent
FEDERAL COURT OF APPEAL
Date: 19980617
Docket: A-673-97
BETWEEN:
NIDEK CO., LTD.
Appellant
-and-
VISX INCORPORATED
Respondent
REASONS FOR JUDGMENT
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