Date:
20130219
Docket:
A-300-12
Citation:
2013 FCA 46
CORAM: BLAIS C.J.
GAUTHIER J.A.
TRUDEL J.A.
BETWEEN:
APOTEX INC. and
APOTEX
PHARMACHEM INC.
Appellants
and
H.
LUNDBECK A/S
Respondent
Heard
at Montreal, Quebec, on February
19, 2013.
Judgment delivered from the Bench at Montreal, Quebec, on February
19, 2013.
REASONS FOR JUDGMENT BY: THE
COURT
Date:
20130219
Docket:
A-300-12
Citation:
2013 FCA 46
CORAM: BLAIS
C.J.
GAUTHIER
J.A.
TRUDEL
J.A.
BETWEEN:
APOTEX INC. and
APOTEX
PHARMACHEM INC.
Appellants
and
H.
LUNDBECK A/S
Respondent
REASONS FOR JUDGMENT
BY THE COURT
(Delivered
from the Bench at Montreal, Quebec, on February 19, 2013)
[1]
Apotex
Inc. and Apotex Pharmachem Inc. (collectively Apotex) appeal from the order of
Tremblay-Lamer J. (Docket T-1407-09, dated June 13, 2012) (the Judge) upholding
the order of Prothonotary Tabib (Docket T-1407-09, dated June 1, 2012) who
ordered each company individually to provide Lundbeck with 250g of escitalopram
from at least three representative batches. The Prothonotary’s order was made
pursuant to Rule 249 of the Federal Courts Rules, SOR/98-106.
[2]
The
Judge applied the correct test to determine the appeal before her in respect of
a motion that did not involve any question vital to the final issue of the
case. She concluded that Apotex had failed to establish that the Prothonotary
erred in law. She also found that this was not a clear case of misuse of judicial
discretion by the case manager, especially considering that Rule 249 accords
the decision-maker discretion to order the production of samples when it is
expedient to do so for the purpose of obtaining information or evidence in
full.
[3]
Apotex
disagrees with the Federal Court’s interpretation of Rule 249 and argues that
the Judge and Prothonotary below erred in law by not recognizing that the
granting of an order under Rule 249 is an exceptional remedy and one of last
resort. As a result, the Prothonotary should never have issued the impugned
order.
[4]
Although
formulated differently, Apotex’s arguments regarding the legal test applicable
to Rule 249 are consistent with the submissions it made in four other appeals
heard this day by the same panel. For reasons expressed in appeal file A-337-12
(consolidated with appeal files A-338-12 and A‑339‑12), Apotex’s
submissions are rejected. We are satisfied that the Federal Court adopted the
proper test and applied it correctly to the facts.
[5]
Although
not pressed at the hearing of this appeal, Apotex also says that there was
insufficient evidence to reach any conclusion other than H. Lundbeck A/S was on
a fishing expedition. In the Appellants’ view, both the Judge and the
Prothonotary inverted the burden of proof and made palpable and overriding
factual errors. We disagree.
[6]
As
a result, we have not been persuaded that either decision maker made any error
that would justify our intervention.
[7]
The
appeal will be dismissed with costs.
“Pierre Blais”
“Johanne Gauthier”
“Johanne Trudel”
FEDERAL COURT OF
APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-300-12
STYLE OF CAUSE: Apotex
Inc. et al. v.
H. Lundbeck A/S
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: February 19, 2012
REASONS FOR JUDGMENT
OF THE COURT BY: THE COURT
DELIVERED FROM THE
BENCH BY: THE TRUDEL J.A.
APPEARANCES:
|
Mr. Andrew Brodkin
Mr.
Sandon Shogilev
|
FOR
THE APPELLANTS
|
|
Mr. David Turgeon
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
GOODMANS LLP
Toronto, Ontario
|
FOR THE APPELLANTS
|
|
FASKEN MARTINEAU DUMOULIN
Montreal, Quebec
|
FOR THE RESPONDENT
|
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