Michael Yasskin

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 abandoned their motion to strike the plaintiffs' claim on the day of the hearing.

The plaintiffs sought substantial indemnity or partial indemnity costs for preparing for this motion.

The court considered various factors under the Rules of Civil Procedure, including the complexity of the issues, the importance of the issues, and the parties' conduct.

The court found the hourly rates reasonable but the time docketed excessive given the nature of the motion and the plaintiffs' prior experience with similar motions.

The court awarded partial indemnity costs, finding that the defendants' conduct did not warrant substantial indemnity.

The defendants, Pfizer, brought a motion under Rule 21.01(1)(b) to strike various claims in the plaintiff Apotex Inc.'s Amended Statement of Claim.

Apotex sought relief for being kept out of the market by Pfizer's invalid patent for Viagra, asserting statutory claims under the Patented Medicines (Notice of Compliance) Regulations, Statutes of Monopolies, and Trade-marks Act, and common law claims for unjust enrichment, nuisance, Ashby v. White, and conspiracy.

The court struck the claims under s. 8 of the PMNOC Regulations and the independent cause of action based on Ashby v. White, finding that the statutory conditions for PMNOC damages were not met and Ashby v. White is a principle, not a cause of action.

However, the court dismissed Pfizer's motion to strike the claims under the Trade-marks Act, unjust enrichment, nuisance, and conspiracy, rejecting the 'complete code theory' as insufficiently settled for a preliminary stage motion and finding the pleadings for these claims to disclose a reasonable cause of action.

The defendants moved to strike various claims by the plaintiff, Apotex Inc., including claims under the Trade-marks Act and the Monopolies Acts, as well as claims for unjust enrichment and a "basket clause" for other relief.

The motion was brought under Rules 21.01(1)(b) and 25.11(b) and (c) of the Rules of Civil Procedure, arguing no reasonable cause of action, frivolousness, vexatiousness, or abuse of process, and also raising arguments of "complete code" and res judicata.

The court dismissed the defendants' motions, except for the unjust enrichment and "basket clause" claims which Apotex did not oppose, finding that the legal issues were insufficiently settled to be decided at the pleadings stage.

The court emphasized the need to avoid piecemeal appeals and directed a case conference to expedite the matter to trial.