AstraZeneca Canada Inc. et al. v. Apotex Inc., (2012) 430 N.R. 194 (FCA)

• Judge: Dawson, Trudel and Stratas, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: February 28, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 430 N.R. 194 (FCA);2012 FCA 68

AstraZeneca Can. Inc. v. Apotex Inc. (2012), 430 N.R. 194 (FCA)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2012] N.R. TBEd. MR.018

Apotex Inc. (appellant) v. AstraZeneca Canada Inc. and Aktiebolaget Hässle (respondents)

(A-211-11; 2012 FCA 68; 2012 CAF 68)

Indexed As: AstraZeneca Canada Inc. et al. v. Apotex Inc.

Federal Court of Appeal

Dawson, Trudel and Stratas, JJ.A.

February 29, 2012.

Summary:

A Prothonotary granted the plaintiffs' motion, for the most part, to amend the second amended statement of claim to allow additional pleas of issue estoppel and abuse of process to be raised in the underlying infringement action. The defendant appealed.

The Federal Court, in a decision reported at 390 F.T.R. 110, dismissed the appeal. The questions in the motion were not vital to the final issue of the case and the order was not clearly wrong, in the sense that the exercise of discretion by the Prothonotary was based upon a wrong principle or upon a misapprehension of the facts. The defendant appealed.

The Federal Court of Appeal dismissed the appeal, substantially for the reasons offered by the Federal Court.

Courts - Topic 2583

Registrars and prothonotaries - Appeals from - Scope of review - [See Patents of Invention - Topic 8087 ].

Patents of Invention - Topic 3646

Infringement actions - Pleadings - Amendments - [See Patents of Invention - Topic 8087 ].

Patents of Invention - Topic 8087

Practice - Pleadings - Amendments - A Prothonotary granted leave to the plaintiffs in an infringement action to amend their pleading by adding five paragraphs - Those paragraphs alleged that the defendant was estopped from litigating certain findings of fact made in a decision of a foreign court - The Prothonotary concluded that the amendments would survive a motion to strike and would not cause irremediable prejudice to the defendant - The defendant's appeal was dismissed - The Prothonotary's decision to grant the amendments was not vital to the final outcome of the case, and the defendant had not demonstrated that the Prothonotary based his decision on a wrong principle or upon a misapprehension of the facts - In this appeal, the defendant emphasized that the amendments could not succeed in law - It submitted that issue estoppel could not arise from the foreign court's construction of the claims in the patent - In its view, the facts alleged in the paragraphs sought to be added were inextricably bound or related to the foreign court's construction of the claims - The Federal Court of Appeal rejected the argument - On their face, the paragraphs alleged facts, not the foreign court's construction of the claims in the patent, and alleged a legal result, that issue estoppel arose from them - It was not plain and obvious at this time that the facts alleged were inextricably bound or related to the foreign court's construction of the claims and that those paragraphs could not succeed in law - "It will be for the trial judge to determine on the evidence whether the facts alleged in these paragraphs are proven and whether, in law, they give rise to issue estoppel".

Practice - Topic 2120

Pleadings - Amendment of pleadings - Statement of claim - General - [See Patents of Invention - Topic 8087 ].

Cases Noticed:

Johnson & Johnson Inc. et al. v. Boston Scientific Ltd. (2008), 327 F.T.R. 49; 2008 FC 552, refd to. [para. 31].

Counsel:

Julie Rosenthal and Daniel Cappe, for the appellant;

Mark G. Biernacki and Junyi Chen, for the respondents.

Solicitors of Record:

Goodmans LLP, Toronto, Ontario, for the appellant;

Smart & Biggar, Toronto, Ontario, for the respondents.

This appeal was heard at Toronto, Ontario, on February 28, 2012, before Dawson, Trudel and Stratas, JJ.A., of the Federal Court of Appeal. In reasons written by Stratas, J.A., the Court of Appeal delivered the following judgment on February 29, 2012.