Federal Court of Appeal Decisions

Date: 20061018

Docket: A-587-05

Citation: 2006 FCA 339

CORAM:       LINDEN J.A.

                        NADON J.A.

                        MALONE J.A.

BETWEEN:

APOTEX INC.

Appellant

and

AKTIEBOLAGET HÄSSLE

Respondent

Heard at Toronto, Ontario, on October 18, 2006.

Judgment delivered from the Bench at Toronto, Ontario, on October 18, 2006.

REASONS FOR JUDGMENT OF THE COURT BY:                                                  NADON J.A.

Date: 20061018

Docket: A-587-05

Citation: 2006 FCA 339

CORAM:       LINDEN J.A.

                        NADON J.A.

                        MALONE J.A.

BETWEEN:

APOTEX INC.

Appellant

and

AKTIEBOLAGET HÄSSLE

Respondent

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Toronto, Ontario, on October 18, 2006)

NADON J.A.

[1]               On the basis of the allegations found in paragraph 53 of Apotex’ Amended Statement of Claim and paragraph 53 of its second Amended Statement of Claim we are satisfied that the Judge erred in upholding the Prothonotary’s Order that the productions sought by questions 90 and 95 were to be provided to the respondent.

[2]               The productions sought by questions 90 and 95, like the answers to questions 75 (both), 77, 82 and 86 were clearly irrelevant in view of the limited scope of the paragraph 53 allegations which are limited to statements made by the respondent in patents other than the one at issue in this appeal.

[3]               We are also satisfied that paragraph 13 of the Amended Statement of Claim and paragraph 13 of the second Amended Statement of Claim do not give rise either to the production of the regulatory file or the regulatory submission.  Not only are these productions irrelevant with respect to the lack of utility issue raised by paragraph 53 of Apotex’ pleadings, they are also clearly irrelevant with regard to Apotex’ standing as an interested person.

[4]               The appeal will therefore be allowed with costs and the decision of the Federal Court dated November 21, 2005 will be set aside to the extent that it allows the respondent’s motion and orders the productions sought by questions 90 and 95.

“M. Nadon”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                              A-587-05

APPEAL FROM THE ORDER OF HUGHES J. DATED NOVEMBER 21, 2005, DOCKET NO. T-2146-03

STYLE OF CAUSE:                                                              Apotex Inc.

                                                                                                v.

                                                                                                Aktiebolaget Hässle

PLACE OF HEARING:                                                        Toronto, Ontario

DATE OF HEARING:                                                          October 18, 2006

REASONS FOR JUDGMENT OF THE COURT BY:       Linden, Nadon & Malone JJ.A.

DELIVERED FROM THE BENCH BY:                            Nadon J.A.

APPEARANCES:

SOLICITORS OF RECORD: