Jerry Topolsky

In a case management endorsement, the court stayed most of the plaintiff's claims for delayed generic drug market entry pending the appeal of a related decision, except for a claim under section 8 of the Patented Medicines (Notice of Compliance) Regulations.

The court also lifted a prior consent bifurcation order, directing that the trial of the section 8 claim proceed on both liability and damages to prevent technical delays and ensure the efficient resolution of the ten-year-old case.

The defendants sought to adjourn a scheduled 20-day trial to bring a summary judgment motion, or alternatively, to await a decision in a similar case.

The plaintiff opposed, arguing procedural requirements for such an adjournment.

Following a relevant summary judgment decision by another judge in a related action, the court vacated the trial date and ordered a schedule for the defendants' summary judgment motion.

The court found that a summary judgment could resolve the case more quickly and cheaply, emphasizing judicial economy and the principle of stare decisis, and that prior decisions refusing summary judgment in similar cases did not preclude reconsideration given new circumstances.

This endorsement addresses a refusals motion where the defendants, Eli Lilly, sought to question the plaintiff, Apotex, regarding communications with the government during Apotex's abbreviated new drug submission (ANDS) process.

Apotex argued that its drug approval process was immune from challenge by Lilly.

The court distinguished between an impermissible collateral attack on Health Canada's regulatory approval and a permissible inquiry into factors that might affect the "start date" for damages under s. 8(1)(a)(ii) of the Patented Medicines (Notice of Compliance) Regulations.

The court found Lilly's request to be probative of a properly pleaded issue concerning the quantum of damages, rather than the validity of the approval itself.

Consequently, the motion was granted, and the question was ordered to be answered.