Neil R. Belmore

The applicants sought an extension of time to serve and file an application for leave to appeal from a Federal Court of Appeal judgment dismissing their appeal as moot.

The applicants missed the 60-day deadline and filed their application 106 days after the judgment, citing the need to consider recent Supreme Court decisions.

The Supreme Court of Canada dismissed the motion, finding a lack of diligence and no valid reasons to explain the delay, emphasizing that time limits must be respected to ensure fairness to all parties.

Apotex appealed a trial judge's decision allowing Bayer to elect an accounting for profits as a remedy for patent infringement and directing a referee to count all infringing capsules sold by Apotex.

Apotex argued that the trial judge reversed the burden of proof, misconstrued the patent, and erred in finding a causal link between the infringement and all profits.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's exercise of discretion to award an accounting for profits or in the direction to the referee, as Apotex's product infringed the patent in its entirety.