Date:20001124
Docket:A-732-99
CORAM: STONE J.A.
ROTHSTEIN J.A.
EVANS J.A.
BETWEEN:
APOTEX INC.
Appellant
(Plaintiff)
- and -
MERCK & CO., INC. and
MERCK FROSST CANADA INC.
Respondents
(Defendants)
Heard at Toronto, Ontario, Thursday, November 23, 2000
Judgment delivered from the Bench at Toronto, Ontario,
on Thursday, November 23, 2000
| REASONS FOR JUDGMENT OF THE COURT BY: ROTHSTEIN J.A. |
Date: 20001124
Docket: A-732-99
CORAM: STONE J.A.
ROTHSTEIN J.A.
EVANS J.A.
BETWEEN:
APOTEX INC.
Appellant
(Plaintiff)
- and -
MERCK & CO., INC. and
MERCK FROSST CANADA INC.
Respondents
(Defendants)
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario
on Thursday, November 23, 2000)
ROTHSTEIN J.A.
| _. This is an appeal from an Order of Lemieux J. striking paragraph 14 of the appellant's defence to counterclaim on the ground of res judicata. Despite Miss Bassan's argument, we have not been persuaded that Lemieux J. erred in finding that the issue of the validity of Merck's patent 1275349 was res judicata and in striking Apotex's pleading of invalidity. We do not think he took too broad an approach to the question of issue estoppel. Nor have any special circumstances been advanced that would indicate that he should have exercised his discretion to permit the issue of validity to be re-litigated. |
| _. The appeal will be dismissed with costs fixed at $7,000 inclusive of disbursements and payable forthwith. |
"Marshall Rothstein"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| DOCKET: A-732-99 |
| STYLE OF CAUSE: APOTEX INC. |
Appellant
(Plaintiff)
- and -
MERCK & CO., INC. and
MERCK FROSST CANADA INC.
Respondents
(Defendants)
DATE OF HEARING: THURSDAY, NOVEMBER 23, 2000
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR JUDGMENT BY: ROTHSTEIN J.A. |
Delivered at Toronto, Ontario on Thursday, November 23, 2000
APPEARANCES: Ms. Daniela F. Bassan
For the Appellant
Mr. G.A. Macklin
For the Respondents
| SOLICITORS OF RECORD: Goodman Phillips & Vineberg |
250 Yonge Street
Suite 2400
Toronto, Ontario
M5B 2M6
| For the Appellant |
Gowling Strathy & Henderson
160 Elgin Street
Suite 2600
Ottawa, Ontario
K1P 1C3
| For the Respondents |
FEDERAL COURT OF APPEAL
Date: 20001124
Docket: A-732-99
BETWEEN:
| APOTEX INC. |
Appellant
(Plaintiff)
- and -
MERCK & CO., INC. and
MERCK FROSST CANADA INC.
Respondents
(Defendants)
| REASONS FOR JUDGMENT |
| OF THE COURT |