Apotex Inc. v. Sanofi-Aventis, (2010) 362 F.T.R. 242 (FC)

• Court: Federal Court (Canada)
• Case Date: January 07, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2010), 362 F.T.R. 242 (FC);2010 FC 77

Apotex Inc. v. Sanofi-Aventis (2010), 362 F.T.R. 242 (FC)

MLB headnote and full text

Temp. Cite: [2010] F.T.R. TBEd. JA.027

Apotex Inc. (plaintiff) v. Sanofi-Aventis  (defendant)

(T-644-09)

Sanofi-Aventis and Bristol-Myers Squibb  Sanofi Pharmaceuticals Holdings Partnership (plaintiffs) v. Apotex Inc., Apotex  Pharmachem Inc. and Signa SA de CV  (defendants)

(T-933-09; 2010 FC 77)

Indexed As: Apotex Inc. v. Sanofi-Aventis

Federal Court

Tabib, Prothonotary

January 22, 2010.

Summary:

The parties to this consolidated litigation over the drug at issue brought reciprocal motions, seeking that the opposing party be compelled to provide a further and better affidavit of documents. Both parties ("Apotex" and "Sanofi") had early on committed to streamline the complex litigation. As a result, tentative trial dates had already been set aside, case management had been implemented, and a schedule had been set for completing all pre-trial steps to meet those dates.

A Prothonotary of the Federal Court dismissed Apotex's motion and granted Sanofi's motion only in respect of one of the 14 issues argued. The motions were largely unsuccessful as a result of both parties having failed to meet their burden of proof to show the existence of other relevant documents.

Patents of Invention - Topic 8116

Practice - Discovery - Documents - Foreign and domestic patent files - [See second Practice - Topic 4648 ].

Practice - Topic 4648

Discovery - Affidavit or list of documents - Order for further and better affidavit or list - In the context of consolidated litigation over the drug at issue, a Prothonotary of the Federal Court set out the jurisprudence and the Federal Courts Rules applicable to motions for further and better affidavits of documents - See paragraphs 11 to 14.

Practice - Topic 4648

Discovery - Affidavit or list of documents - Order for further and better affidavit or list - The parties to this consolidated and "fast tracked" litigation over the drug at issue ("Apotex" and "Sanofi") brought reciprocal motions, seeking that the opposing party be compelled to provide a further and better affidavit of documents - A Prothonotary of the Federal Court examined each of the 14 categories of documents in respect of which Sanofi claimed Apotex's affidavit of documents was deficient and granted Sanofi's motion only in respect of one of the 14 issues argued - See paragraphs 17 to 48 - Apotex claimed Sanofi's affidavit of documents was deficient in respect of 10 categories of documents - The Prothonotary dealt with those categories under four general headings and dismissed Apotex's motion - See paragraphs 49 to 66 - The motions were largely unsuccessful as a result of both parties having failed to meet their burden of proof to show the existence of other relevant documents - The reason for this was not because of how the court weighted contradictory evidence, but because no evidence was even tendered - See paragraph 68.

Practice - Topic 5274.8

Trials - General - Simplified procedure actions, fast track litigation, etc. - Discovery - A Prothonotary of the Federal Court stated that "In the context of 'fast track' or steamlined actions managed pursuant to the Notice to the Parties and to the Profession issued by this Court on May 1, 2009, the importance of ensuring that these rules [relating to affidavits of documents] are understood, followed and strictly applied by both parties cannot be overstated" - The Prothonotary stated that it was "crucial to note that both parties herein have early on embraced and committed to the Court's initiative to streamline complex litigation and schedule trial dates within two years of the institution of an action" - In committing to the early trial initiative, "the parties and their counsel have committed to a schedule that does not allow infinite time for discoveries" - In ruling on the parties' motions for further and better affidavits of documents, the court assumed from the parties a high standard of professionalism - See paragraphs 1 to 10.

Cases Noticed:

Poitras v. Sawridge Indian Band et al., [2001] F.T.R. Uned. 226; 2001 FCT 456, refd to. [para. 14].

Canada (Minister of Citizenship and Immigration) v. Dueck (1998), 146 F.T.R. 89, appld. [para. 43].

Apotex Inc. v. Merck & Co. et al. (2004), 259 F.T.R. 238; 33 C.P.R.(4th) 387 (F.C.), affd. (2005), 331 N.R. 144; 38 C.P.R.(4th) 289 (F.C.A.), refd to. [para. 56].

Statutes Noticed:

Federal Courts Rules, rule 223(2)(a)(i), rule 223(2)(a)(ii), rule 223(2)(a)(iv) [para. 11]; rule 223(4) [para. 43]; rule 227, rule 232(1) [para. 12].

Counsel:

Ben Hackett, for Apotex Inc. and Apotex Pharmachem Inc.;

Anthony Creber and Cristin Wagner, for Sanofi-Aventis and Bristol-Myers Squibb Sanofi Pharmaceuticals Holdings Partnership.

Solicitors of Record:

Goodmans, LLP, Toronto, Ontario, for Apotex Inc. and Apotex Pharmachem Inc.;

Gowling Lafleur Henderson, LLP, Ottawa, Ontario, for Sanofi-Aventis and Bristol-Myers Squibb Sanofi Pharmaceuticals Holdings Partnership.

These motions were heard at Ottawa, Ontario, on January 7, 2010, by Tabib, Prothonotary, of the Federal Court, who delivered the following order and reasons for order, dated January 22, 2010.