Apotex Inc. v. Astrazeneca Canada Inc., 2014 FCA 142

Date: 20140528

Docket: A-298-13

Citation: 2014 FCA 142

Heard at Toronto, Ontario, on May 28, 2014.

Judgment delivered from the Bench at Toronto, Ontario, on May 28, 2014.

Date: 20140528

Docket: A-298-13

Citation: 2014 FCA 142

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Toronto, Ontario, on May 28, 2014).

GAUTHIER J.A.

[1]               This is an appeal from the order of Kane J. of the Federal Court (2013 FC 926) upholding the order of Prothonotary Aronovitch granting leave to Astrazeneca to add certain paragraphs to their Third Amended Statement of Claim in their patent infringement action (file T-1409-04). These amendments relate to the Astrazeneca’s standing and to damages sought by Astrazeneca in respect of the compensation it will have to pay under the section 8 of the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133 proceeding instituted by Apotex (file T-2300-05).

[2]               The judge was satisfied that the prothonotary had not erred and that even if the matter had to be reviewed on a de novo basis, she would have arrived at the same conclusion. She noted that the merits of the section 8 damages claims were best left to the trial judge.

[3]               Having reviewed the record and the parties' submissions, and considering their oral arguments, we have not been persuaded that the judge committed an error that would justify this Court’s intervention, particularly in a file of such complexity where the case manager had such an intimate knowledge of all the relevant proceedings and of the uniqueness of the circumstances.

[4]               Obviously, our decision should not be understood as endorsing the validity of the claims which have yet to be determined by the trial judge.

[5]               Accordingly, the appeal will be dismissed with costs

"Johanne Gauthier"

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

APPEAL FROM AN ORDER OF THE HONOURABLE JUSTICE KANE OF THE FEDERAL COURT OF CANADA, DATED AUGUST 30, 2013, DOCKET NO. T-1409-04

APPEARANCES:

SOLICITORS OF RECORD: