COURT FILE NO.: CV-13-492419

DATE: 20201202

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: APOTEX INC. and APOTEX PHARMACHEM INC., Plaintiffs

AND:

ELI LILLY CANADA INC. and ELI LILLY AND COMPANY and ELI LILLY AND COMPANY LIMITED and ELI LILLY SA, Defendants

BEFORE: Paul B. Schabas J.

COUNSEL: Nando De Luca and Jerry Topolski for the Plaintiffs

Marc Richard, Alex Gloor and Rebecca Stilles for the Defendants

HEARD: December 2, 2020

ENDORSEMENT

[1] The defendants have brought a motion for summary judgment. In September, two days were scheduled for the hearing of the motion, December 3 and 4, 2020. At that time, Ferguson J. noted that counsel would “prefer” to have the motion heard in person, rather than through virtual technology.

[2] In September, the courts had re-opened following the first wave of the COVID-19 pandemic, and many in-person hearings were resuming. At the same time, however, many cases were being held virtually on Zoom technology, as has been the case since shortly after the pandemic was declared last spring, and which has continued even with the reopening of the courts.

[3] This motion is being brought in Toronto, which is currently under a 28-day lockdown order by the provincial government as we experience the “second wave” of COVID-19. However, court hearings are continuing to proceed by Zoom. This includes trials and motions in civil, criminal and family matters. Many of them involve extremely serious matters and all are important to the parties involved.

[4] Earlier this week, counsel for the parties in this matter were advised of the Zoom coordinates for this motion to be heard on Thursday and Friday. At that time, counsel for Apotex contacted the court to raise their concern with proceeding virtually, rather than in-person, and requested that if the case cannot be heard in person it should be adjourned.

[5] I was assigned to hear this matter yesterday and was made aware of Apotex’s objection to hearing the case by Zoom, and therefore convened a telephone case conference with counsel this morning, Wednesday, December 2, 2020.

[6] Mr. De Luca asserted that the motion should be heard in person due to the nature of the motion, the subject matter, that it is a substantial claim for, potentially, “hundreds of millions of dollars”, and because there is no urgency. Mr. De Luca also submitted that the matter involved many documents and that it would be “more cumbersome” to proceed with an electronic record in a virtual setting, and that the proceeding would not go as smoothly as if it was in person.

[7] In response, Mr. Richard stated that although an in-person hearing may be preferable, Zoom is feasible and his client wished to go ahead with the matter this week. While the matter is not “urgent”, he noted that the motion was to be set down in April 2020 and has been delayed since the onset of the pandemic last spring. Mr. Richard observed that trials and other proceedings are being held by Zoom, citing a significant patent trial that his firm had conducted virtually earlier this year.

[8] After hearing from counsel, I advised them that the matter would proceed by Zoom tomorrow and Friday.

[9] In my view, there is no reason why this hearing cannot and should not proceed by Zoom. While we would all prefer to be living in a non-COVID world and conducting hearings in courtrooms, there is no prejudice to the parties in proceeding by Zoom.

[10] The Zoom platform is now familiar to most of us, including counsel. It allows for participants to be visible to one another and to speak to each other as if they are all in the same room. I have been using Zoom to conduct hearings for at least the past 6 months and have not encountered any difficulties in seeing or hearing counsel, or witnesses. Courts across Canada, at all levels, have been using Zoom and other similar platforms to conduct hearings so that the public can access justice.

[11] The Zoom technology provides for “break out rooms” to allow parties and counsel to confer separately and in private during breaks and adjournments. It also has a “chat” function that allows for messages to be sent to one another privately, to one or more participants, or to all participants. These features are useful if co-counsel and clients are physically distanced from one another, as may be the case while the pandemic continues.

[12] The summary judgment motion involves certain defined legal issues. There will be no live witnesses or, it appears, any need to make findings of credibility based on disputed facts. The documentary record consists largely of pleadings and court decisions in this and other litigation. While somewhat large at 12 volumes (approximately 4000 pages) in total, the record has been loaded onto the document sharing platform at www.sync.com and can be easily used and referred to by counsel and the court. Indeed, having held many hearings by Zoom, I have found it easier to refer to and make use of the documentary record in electronic form than being burdened by seeking documents in multiple separate volumes of paper as one is obliged to do at in-person hearings. Furthermore, there is a useful “screen share” feature that permits counsel or the court to look at a document together if desired.

[13] There is nothing special in this motion that differentiates it from all the other motions, applications, trials and other proceedings that are being conducted virtually during the pandemic such that it should proceed in person. The parties here are two large corporations represented by teams of lawyers with ample resources to address any logistical concerns they may have with proceeding by Zoom, none of which have been raised other than to say, without specifics, that it would be “more cumbersome,” which I do not accept.

[14] This hearing has been scheduled for some time, the motion is ready to be argued, and the court has set aside time for it. An adjournment would cause unnecessary additional delay for an indefinite period and would waste valuable court time. A vaccine is on the horizon, but it will take time to be provided. Assuming in person cases resume in 2021, a two-day hearing could not be scheduled before, at the earliest, April or May 2021 – which demonstrates that the courts are functioning virtually and are busy. The matter may not be urgent, but there is no justification for further delay and the case shall proceed as scheduled on December 3 and 4, 2020.

Paul B. Schabas J.

Date: December 2, 2020