Apotex Inc. v. Merck & Co. Inc., 2006 FCA 296

Date: 20060911

Docket: A-35-06

Citation: 2006 FCA 296

CORAM:       LINDEN J.A.

                        SEXTON J.A.

                        MALONE J.A.

BETWEEN:

APOTEX INC.

Appellant

and

MERCK & CO., INC., MERCK FROSST CANADA & CO.,

MERCK FROSST CANADA LTD., SYNGENTA LIMITED

 ASTRAZENECA UK LIMITED and ASTRAZENECA CANADA INC.

Respondents

Heard at Toronto, Ontario, on September 11, 2006.

Judgment delivered from the Bench at Toronto, Ontario, on September 11, 2006.

REASONS FOR JUDGMENT OF THE COURT BY:                                                 SEXTON J.A.

Date: 20060911

Docket: A-35-06

Citation: 2006 FCA 296

CORAM:       LINDEN J.A.

                        SEXTON J.A.

                        MALONE J.A.

BETWEEN:

APOTEX INC.

Appellant

and

MERCK & CO., INC., MERCK FROSST CANADA & CO.,

MERCK FROSST CANADA LTD., SYNGENTA LIMITED

ASTRAZENECA UK LIMITED and ASTRAZENECA CANADA INC.

Respondents

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Toronto, Ontario, on September 11, 2006)

SEXTON J.A.

[1]               The Trial Judge in the present case was faced with applications by the opposing parties to amend their pleadings at the opening of trial.  There had been extensive interlocutory issues previously in the litigation.  Indeed the litigation commenced in 1996 and was finally set for trial approximately ten years later.  The Trial Judge obviously felt that all issues should be dealt with at the trial.  In the result the trial lasted for several months and the Trial Judge dealt with the issues raised in the amendments made by both sides.  The Trial Judge had a discretion to do this and indeed, to refuse to deal with these issues would undoubtedly have prolonged the litigation between the parties even further.  We see no reason to interfere with the discretion exercised by the Trial Judge.

[2]               The appeal will be dismissed with costs.

“J. Edgar Sexton”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                              A-35-06

(APPEAL FROM AN ORDER OF THE FEDERAL COURT DATED JANUARY 10, 2006, DOCKET NO. T-2792-96)

STYLE OF CAUSE:                                                              APOTEX INC.

                                                                                                v.

                                                                                                MERCK & CO., INC., MERCK FROSST CANADA & CO., MERCK FROSST CANADA LTD., SYNGENTA LIMITED, ASTRAZENECA UK LIMITED and ASTRAZENECA CANADA INC.

PLACE OF HEARING:                                                        Toronto, Ontario

DATE OF HEARING:                                                          September 11, 2006

REASONS FOR JUDGMENT OF THE COURT BY:       (LINDEN, SEXTON,

                                                                                                MALONE JJ.A.)

DELIVERED FROM THE BENCH BY:                            SEXTON J.A.

APPEARANCES:

SOLICITORS OF RECORD: