Date:
20110623
Docket:
A-180-11
Citation:
2011 FCA 211
CORAM: SHARLOW
J.A.
TRUDEL
J.A.
STRATAS
J.A.
BETWEEN:
ASTRAZENECA CANADA INC. and
ASTRAZENECA
AKTIEBOLAG
Appellants
and
APOTEX INC.
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Toronto, Ontario, on June 23,
2011)
STRATAS J.A.
[1]
This is an
appeal from an order dated April 29, 2011 of the Federal Court (per
Justice Crampton), dismissing the appellants’ motion for an interlocutory
injunction.
[2]
The
appellants sought to restrain the respondent and others from making,
constructing, importing, exporting, using, selling to others to be used or
offering to sell Apo-Esomeprazole and/or esomeprazole magnesium until the
completion of a patent infringement trial.
[3]
The
Federal Court judge applied the well-known test in RJR-Macdonald Inc. v.
Canada (Attorney General), [1995] 3 S.C.R. 99 to the facts established in the
evidence adduced before him, and dismissed the motion. In careful, clear and comprehensive
reasons for judgment, he reviewed, weighed and assessed that evidence, making
credibility findings that were central to his decision. He preferred much of
the respondent’s evidence, calling it “more analytically robust and
persuasive,” and, at various times, termed the appellants’ evidence as
“implausible,” “speculative,” “unsubstantiated,” and “exaggerated.” Based on
the evidence before him which he analyzed carefully, he did not accept that the
appellants had established irreparable harm.
[4]
In our
view, the Federal Court judge’s decision to dismiss the motion was heavily
fact-based. Absent some fundamental legal error, it can be set aside only on
the basis of palpable and overriding error.
[5]
Before us,
the appellants submit that the Federal Court judge committed fundamental legal
error by requiring them to establish a standard of harm that was impossible to
meet. For example, they say that the Federal Court judge set the bar too high by
holding that AstraZeneca Canada Inc. should have known and planned for the
eventuality that their medicine would have been subject to generic competition
at some point. They also allege that the Federal Court judge said (at paragraph
80) that certain types of harms are not “cognizable” in law.
[6]
On an
overall reading of the Federal Court judge’s reasons, we conclude that he did
not set the bar too high on the issue of irreparable harm. He did not say that
certain types of harm were not “cognizable in law.” Rather (at paragraphs 100,
132 and 149) he found that the case before him was similar to other reported
cases, where the courts found that the harms were not irreparable. In our view,
it was open to him, based on the evidence before him and the credibility
findings he made, to reach the conclusion that the appellants had not
established irreparable harm as it has been defined in the cases. He did not
accept that the appellants would suffer any damage that could not be
compensated.
[7]
Even if we
could impugn the Federal Court judge’s findings on irreparable harm, he also based
his decision on other accepted legal bases, such as the appellants’ failure to persuade
him that the balance of convenience was in favour of granting the injunctive
relief. Here again, we also see no reviewable error.
[8]
Many
of the appellants’ submissions in essence invited us to reweigh the evidence
and reach factual conclusions that the Federal Court judge did not make. Under
the deferential standard of review that must apply to findings of fact in this
case, we must decline the invitation.
[9]
For the
foregoing reasons, we conclude that the Federal Court judge committed no
reviewable error.
[10]
The
respondent sought a special order for costs in the amount of $20,000 plus
reasonable disbursements based, among other things, on the filing of a
memorandum that did not comply with the Rules and the numerous grounds asserted
in it that had limited or no merit. The appellant disagreed with those bases,
but accepted that costs should be awarded in a lump sum in the amount of
$10,000 plus reasonable disbursements.
[11]
We shall
dismiss the appeal with costs fixed in the amount of $20,000, plus reasonable
disbursements.
"David Stratas"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-180-11
(APPEAL
FROM THE ORDER OF THE HONOURABLE MR. JUSTICE PAUL CRAMPTON, DATED APRIL 29,
2011, DOCKET NO. T-1668-10)
STYLE OF CAUSE: ASTRAZENECA
CANADA INC. AND ASTRAZENECA AKTIEBOLA v APOTEX INC.
PLACE OF HEARING: Toronto,
Ontario
DATE OF HEARING: June 23, 2011
REASONS FOR JUDGMENT
OF THE COURT BY: (SHARLOW, TRUDEL & STRATAS JJ.A.)
DELIVERED FROM THE BENCH BY: STRATAS J.A.
APPEARANCES:
Gunars A. Gaikis
Yoon
Kang
Vik
Tenekjian
|
FOR
THE APPELLANTS
|
Andrew Brodkin
Julie
Rosenthal
Daniel
Cappe
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
Smart and Biggar
Barristers
and Solicitors
Toronto,
Ontario
|
FOR THE APPELLANTS
|
Goodmans LLP
Barristers
and Solicitors
Toronto,
Ontario
|
FOR THE RESPONDENT
|