Andrew Evan Mandlsohn

This endorsement addresses three complex motions brought by the plaintiff Apotex Inc. and the defendants Sanofi-Aventis, Sanofi-Aventis Deutschland GmbH, Sanofi-Aventis Canada Inc. (collectively "Sanofi"), and Schering Corporation ("Schering"), seeking to compel answers to undertakings and refusals in a long-running pharmaceutical patent litigation.

The motions involved approximately 480 questions, later narrowed to 101.

The Master applied principles of relevance and proportionality under the Rules of Civil Procedure, emphasizing the balance between extensive discovery requests and the significant damages claimed.

Many broad requests for documents and information were denied as disproportionate or overbroad, while narrower, more targeted requests were granted.

The court also addressed issues of solicitor-client privilege and the obligation to state legal positions.

The defendants brought a motion to strike the plaintiff's claims based on the 1624 Statute of Monopolies and the 1897 Ontario Monopolies Act.

The plaintiff, a generic pharmaceutical manufacturer, alleged that the defendants unlawfully delayed its entry into the market by obtaining and asserting an invalid patent.

The defendants argued that the Patent Act and NOC Regulations constituted a complete code and that the Monopolies Acts did not apply.

The court dismissed the motion, finding that it was not plain and obvious that the claims could not succeed, as the law regarding the complete code argument was unsettled and the Monopolies Acts could arguably apply to invalid patents.

The defendants moved to strike the plaintiff’s statement of claim or alternatively to stay the action pending the outcome of related Federal Court litigation concerning damages arising from delayed market entry of a generic pharmaceutical product.

Although the defendants ultimately focused their submissions on striking the claim, the court considered whether a temporary stay should be imposed under s. 106 of the Courts of Justice Act.

The court found substantial overlap between the Ontario action and the Federal Court proceedings, including factual background and issues related to calculation of damages arising from the delayed entry of the generic drug.

A stay would prevent duplication of judicial resources and reduce the risk of inconsistent findings, while causing no significant prejudice to the plaintiff beyond delay.

The court therefore exercised its discretion to stay the action pending the outcome of the appeal in the Federal Court proceedings and any further appeals.