Court File and Parties
COURT FILE NO.: CV-11-429541 DATE: 20190111 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Apotex Inc., Plaintiff/Responding Party AND: Schering Corporation, Sanofi-Aventis, Sanofi-Aventis Deutschland GmbH and Sanofi-Aventis Canada Inc., Defendants/Moving Parties
BEFORE: S. F. Dunphy J.
COUNSEL: Nando De Luca and Daniel Cappe, for the Plaintiff Gunars Gaikis, Sheila Block, and Emily Sherkey, for the Defendants Sanofi-Aventis, Sanofi-Aventis Deutschland GmbH and Sanofi-Aventis Canada Inc Marc Richard, for the defendant Schering Corporation
HEARD: December 12, 2018
Case Conference Endorsement
[1] Ms. Block’s request to schedule a further motion for summary judgment at this point in the proceedings is denied. In 2016, I dismissed a motion brought under Rule 21.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that sought to establish that the plaintiff’s claim under the Monopolies Acts could not succeed. That motion was dismissed. Ms. Block seeks to bring essentially the same motion again, but this time accompanied by evidence and as a motion for summary judgment under Rule 20 instead of under Rule 21.
[2] Another similar Monopolies Act case is nearing the point of being ready for trial on the merits in May of this year. Permitting this case to proceed to a hearing on the merits on the Monopolies Act issue at least would offer the prospect of enabling the Court of Appeal and eventually Supreme Court of Canada to hear two similar cases involving a greater cross-section of the affected industry. I refer to the appeal process because there is no reason to doubt that all of these cases are headed to higher courts for final resolution. The sums of money involved are staggering and the cost of litigation will not be any deterrent to obtaining a definitive ruling on these issues.
[3] On the other hand, there are multiple such cases wending their way through the system. This is but one. This case was being case-managed with a view to being tried in the same time frame on all of the issues. However, the defendants (including Sanofi) determined that an amendment of their pleading to contest the previously declared invalidity of their patent was a prudent course of action in light of a recent decision by the Supreme Court of Canada. The Court of Appeal has recently ruled that the proposed amendment ought to be allowed. This in turn will re-open the entire patent validity issue and has definitively knocked this case off of any track where it is likely to be ready for trial on all issues in much under a year – or longer.
[4] The origins of this case go back to 2003 when Apotex first launched its abbreviated new drug submission to the Minister and was met with an application for prohibition. Since that time, Federal Court proceedings regarding the validity of the patent have been heard and decided, upheld by the Federal Court of Appeal and leave to appeal to the Supreme Court of Canada sought and denied. Patent infringement actions were brought against the plaintiff. The plaintiff brought proceedings for compensation under the PMNOC Regulations, obtaining $215 million in compensation in an award that was appealed to and upheld by the Federal Court of Appeal in 2014. These Superior Court proceedings have been meandering their way through the system since 2011.
[5] I do not mean to be in any way critical of the defendants for deciding to proceed in that fashion. I fully appreciate that the potential damages they face are vast and preserving every defence available to them is something they must take seriously even if they feel strongly that they have a “winner” on the Monopolies Act issue. However, choices have consequences. This case simply cannot be case managed back into the trial readiness track it was on before. Dealing with the amendments, the reply that will follow and the vastly expanded list of issues and discovery demands that will also follow cannot be done overnight. At least a year, and possibly more, will be needed.
[6] The lure of finding the one issue that may offer a short cut to disposing of complex litigation that threatens otherwise to endure for years is a strong one. However, closer analysis often reveals that lure to be in truth a call of Sirens rather that one of wisdom. As tempting as it may be to follow the suggestion and submit the Monopolies Act issue to appellate review in a compact and efficient way, I fear that the proposed course of action will prolong this litigation and potentially cause it to proceed in fits and starts and bits and pieces. Our Court of Appeal has often cautioned against resorting to partial summary judgment in any but the rarest of cases. This case is not one of the rare cases where partial summary judgment is appropriate.
[7] The foreseeable outcome of such a process would be not one but multiple trips up to higher courts and potentially multiple trials spread out over the next decade or more. Even success by the defendants on the intended motion could prove only ephemeral. The proposed course of action is only a more efficient means of dealing with the issues raised by this claim if I were to make assume the most favourable of all possible outcomes to the moving parties throughout. Every other outcome results in litigation proceeding in fits and starts over many years and consuming vast judicial and legal resources without a foreseeable end in sight.
[8] I shall resist the Siren’s call.
[9] This litigation may have grown in dimension somewhat as a result of recent developments. The parties will simply have to get out their shovels and start digging to get through the piles of work necessary to get this matter heard on the merits and on all issues in a single forum. The end result of that process will then be able to be submitted to appellate review in a single, coherent process.
[10] I decline to schedule the summary judgment motion requested.