Date: 20021022
Docket: A-643-01
Neutral citation: 2002 FCA 411
CORAM: ROTHSTEIN J.A.
BETWEEN:
ELI LILLY AND COMPANY and
ELI LILLY CANADA INC.
Appellants
(Defendants)
and
APOTEX INC.
Respondent
(Plaintiff)
Heard at Ottawa, Ontario, on October 22, 2002.
Judgment delivered from the Bench at Ottawa, Ontario, on October 22, 2002.
REASONS FOR JUDGMENT OF THE COURT BY: NADON J.A.
Date: 20021022
Docket: A-643-01
Neutral citation: 2002 FCA 411
CORAM: ROTHSTEIN J.A.
BETWEEN:
ELI LILLY AND COMPANY and
ELI LILLY CANADA INC.
Appellants
(Defendants)
and
APOTEX INC.
Respondent
(Plaintiff)
REASONS FOR JUDGMENT OF THE COURT
[1] This is an appeal from the decision of Blais J. dated October 20, 2001, which set aside the decision of Prothonotary Lafrenière dated September 27, 2001.
[2] The Prothonotary denied leave to the respondent who was seeking to amend its Statement of Claim in order to invoke unamended s. 8 of the Patent Regulations in support of its claim for damages against the appellants. The Prothonotary was of the view that it was plain and obvious that the respondent could not succeed at trial in regard to the proposed amendment.
[3] Blais J., in setting aside the Prothonotary's Order, concluded that it was not plain and obvious that the amendment sought by the respondent could not possibly bring about a successful result for the respondent. We have not been persuaded that the learned judge made an error in so concluding.
[4] The appellants indicated that should their appeal be dismissed, they would bring a motion for summary judgment in the Trial Division. It goes without saying that our decision herein does not prejudge the appropriateness of such a motion.
[5] The appeal will therefore be dismissed. The respondent will be entitled to party-party costs in the sum of $7,500.00, inclusive of disbursements and GST.
"M. Nadon"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-643-01
STYLE OF CAUSE: Eli Lilly and Company and Eli Lilly Canada Inc. v. Apotex Inc.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: October 22, 2002
REASONS FOR JUDGMENT OF THE COURT: (Rothstein, Nadon & Malone JJ.A.)
RENDERED FROM THE BENCH BY: Nadon J.A.
APPEARANCES:
Mr. Patrick Smith and Mr. Jay Zakaib FOR THE APPELLANTS
Mr. Andrew Brodkin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Gowling Lafleur Henderson LLP
Ottawa, Ontario FOR THE APPELLANTS
Goodmans LLP
Toronto, Ontario FOR THE RESPONDENT