Date: 20010202
Docket: T-421-97
Citation: 2001 FCT 12
BETWEEN:
FAULDING (CANADA) INC.
Plaintiff
- and -
PHARMACIA S.p.A.
Defendant
REASONS FOR ORDER AND ORDER
(Delivered from the Bench in Ottawa, Ontario on
February 1st, 2001)
HUGESSEN J.:
[1] There can be no doubt that this motion to amend comes very late in the day, virtually on the eve of trial. But I think that the rule is clear that an amendment can be made even when it comes so late, provided that it does not cause uncompensatable prejudice to the opposite party1.
[2] I am satisfied that for the most part, these amendments are of a fairly technical nature, clarifying the issues and bringing the pleadings in line with the filed expert reports, and that they will cause no prejudice to the defendant, but the defendant
does plead that three amendments in particular are likely to cause prejudice and with respect to two of them, I agree.
[3] The three points have to do first with the new allegation proposed which would add a pleading of sound prediction. This is a new allegation, and I think I would have rejected it as being likely to cause prejudice were it not for the fact that quite clearly on the material before me, this point has been dealt with by the defendant's experts, that defendant's solicitors asked their experts to deal with the point and they did so. I cannot see how, therefore, the defendant can say that he is taken by surprise by the point.
[4] It is otherwise, in my view, with regard to the other two alleged areas of prejudice created by the new amendments. The first is with respect to alleged inoperable embodiments and the second is with respect to anticipation. There can be no question that there was no specific plea relating to inoperable embodiments in the pleadings prior to the proposed amendments and I think, to introduce that element at this late stage risks causing serious prejudice to the defendant.
[5] It is likewise with the plea of anticipation. Anticipation has originally pleaded was anticipation based upon prior use and knowledge. It is now sought to plead it on the basis of prior publication. Those are two very closely related, but different matters and the experts of the defendant dealt with anticipation on the basis of prior use and knowledge and that is the basis upon which the case must, at this stage, go to trial.
[6] All the other amendments, I am perfectly satisfied as I say, are of matters which were already fairly in issue, the experts have already dealt with most of them, the amendments are in effect to make the pleadings conform to the evidence which is anticipated will be put before the Court and I see no reason why they should not be
allowed at this stage. I do not think, given the fact that the experts have already dealt with most of this matter that there should be need for any particulars.
[7] On the issue of costs, of course, it seems to me that the amending party, especially at this late stage must bare the costs of the amendments and I think that the proper disposition, subject to what counsel may tell me would be that the motion to amend be allowed in part with costs (including costs thrown away) to the defendant in any event of the
cause.
ORDER
The plaintiff's motion is allowed in part with costs (including costs thrown away) to the defendant in any event of the cause.
The amended statement of claim is to be served and filed by February 5, 2001.
The amended statement of defence is to be served and filed by February 9, 2001.
The amended reply is to be served by February 13, 2001.
Trial record and read-ins are to be filed by February 15, 2001.
Plaintiff to serve expert report in reply by February 7, 2001.
If experts comment on the new production, defendant has until February 12, 2001 to respond.
Judge
Ottawa, Ontario
February 2, 2001
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