COURT FILE NO.: CV-11-420115

DATE: 2014-06-11

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: APOTEX INC., Plaintiff

AND:

ELI LIlLY AND COMPANY and ELI LIlLY CANADA INC., Defendants

BEFORE: Stinson J.

COUNSEL:
Nando De Luca and Kellie Hodges, for the Plaintiff, responding party

Gunars Gaikis and Andrew Mandlsohn, for the Defendants, moving parties

HEARD at Toronto: June 10, 2014

ENDORSEMENT

[1] In my handwritten endorsement made June 10, 2014, I adjourned the argument of this Rule 21 motion, with reasons to follow. The adjournment is to a date following the release of the decision of the Court of Appeal in the appeal taken by Apotex from the Divisional Court decision in this matter dated September 19, 2013. That appeal is scheduled to be heard on September 10, 2014. I therefore directed the parties to attend in Motions Scheduling Court on October 14, 2014 to set a new date for the argument of this motion.

[2] My reasons for adjourning the motion are as follows:

a) To state the obvious, the facts upon which the claim that is the subject of this Rule 21 motion to strike is based are the very same facts upon which the claim that is the subject of the appeal now pending in the Court of Appeal is based.

b) The decision of the Court of Appeal on the appeal will inevitably have a significant impact on the issues raised in the present motion, given that they both concern the availability of ancillary remedies in the context of PM(NOC) Regulations-related claims.

c) As a matter of judicial economy, it would be more efficient and desirable to defer the argument and decision of the present motion until the Court of Appeal decision is known, in light of the importance of that decision for purposes of determining the parameters of the dispute between the parties.

d) The length of time it will take to argue the present motion will likely be reduced and the issues will become more focused in the wake of the decision of the Court of Appeal.

e) In light of the pending appeal, this case cannot proceed further (by way of completion of pleadings, production or discovery) until the Court of Appeal releases its decision.

f) The period of delay arising from the adjournment is relatively brief.

g) No real prejudice will arise from the adjournment.

h) Any monetary loss arising from the delay will be compensable by way of an award of interest on such sums as may be found due.

[3] I am alert to the submission of the plaintiff that the adjournment of the present motion will add to the delays encountered in this case to date. To some extent, those delays are a reflection of the volume of motions brought by litigants in proceedings in the Superior Court at Toronto. Important reforms have been introduced to address the problem of delays in scheduling long motions in Toronto, with significant success. That said, the greater portion of the delay in this case to date, has been due to the pursuit of the appeals to the Divisional Court and the Court of Appeal.

[4] As stewards of the justice system, both judges and lawyers have a duty to ensure that disputes are resolved and claims are prosecuted in an efficient fashion, so that the limited resources of the court may be effectively shared among all who seek access to justice. Among other considerations, it is important to schedule various steps in a proceeding so as to maximize the use of judicial resources and to minimize the prospect of duplication of effort.

[5] In this case, I have concluded that it would be far more efficient to have the benefit of the decision of the Court of Appeal before embarking on the hearing of this additional Rule 21 motion. To hold otherwise would run the risk of relying on a principle or premise that may turn out to be contrary to the reasoning of the Court of Appeal, thereby giving rise to yet another round of motions and appeals, leading to even more delay.

[6] I therefore concluded that an adjournment of the motion on the indicated terms was desirable and appropriate.

Stinson J.

Date: June 11, 2014