Court File and Parties

COURT FILE NO.: CV-11-420115

DATE: 20210511

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Apotex Inc., Plaintiff

-and-

Eli Lilly and Company et al., Defendants

BEFORE: F.L. Myers J.

COUNSEL: Nando De Luca, and Jerry Topolsky, for the plaintiff Marc Richard and Richard Dearden for the defendants

HEARD: May 10, 2021

ENDORSEMENT

[1] This is another claim brought by Apotex for losses it suffered by being delayed in coming to market with generic drugs due to efforts by the defendants and other drug manufacturers to assert invalid patents under the federal generic drug regulatory scheme.

[2] Most of the legal issues asserted by Apotex have been resolved by Schabas J. in a different proceeding between the same principal parties reported as Apotex Inc. v. Eli Lilly Canada Inc., 2021 ONSC 1588.

[3] I am required to follow that outcome. In Duggan v. Durham Region Non-Profit Housing Corporation, 2020 ONCA 788 at para. 63, Feldman JA wrote:

[63] …a legal issue … once decided, is not relitigated in the next case.

[4] Apotex acknowledges that its rights asserted on the issues decided by Schabas J. cannot be relitigated in this case. Rather, its rights will be decided on the appeal from that decision. Apotex agrees to stay its claims pending the final appellate decision in the other matter and it will accept that the claims advanced in this case will be dismissed if the decision of Schabas J. is upheld.

[5] There is an additional cause of action asserted in this action by which Apotex seeks damages under s. 8 of the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133. I therefore stay all claims in this action except the s. 8 claim. That claim will proceed to trial against only Eli Lilly Canada Inc. and Eli Lilly and Company as the patentee. No claims will proceed against the other defendants at this time.

[6] The trial of this action was scheduled to commence for 15 days next January. The trial was just for liability on all of the various causes of action pleaded by Apotex. On consent, the issues were bifurcated so that the trial of damages would proceed later if and as necessary.

[7] Apotex suggests that the rationale for bifurcation no longer exists and 15 days is plenty of time to deal with the s. 8 claim including damages.

[8] Mr. Richard argues that the bifurcation order was a consent order that should not be revised without grounds for setting aside a contract. He also raises a number of ancillary issues in the s. 8 claim that may take more than a day or two to argue.

[9] One of the purposes of case management under Rule 77 and the breadth of Rule 50.13 (6) is to prevent parties from taking technical positions that may have all kinds of good tactical reasons but which do not advance the resolution of the merits, are unhelpful, costly for the parties, or a waste of judicial resources.

[10] Eli Lilly completed two rounds of examinations for discovery of the plaintiff including a full examinations of its CFO before the bifurcation order was agreed upon. In any event, damages in these cases are proven by expert evidence. The parties have had a mediation on the merits. They have negotiated on the plaintiff’s damages. Moreover, the parties are very familiar with each other’s modus operandi. With the discovery completed and expert reports to come, Eli Lilly should have its damages information well in hand. If not and if it can show it left important questions unasked due to the bifurcation order, I can be spoken to.

[11] Apotex will serve its expert reports by the end of June, 2021. Eli Lilly Canada and Eli Lilly & Co are the only defendants who will respond to the s. 8 claim or participate in the trial. They will deliver their responding reports by the end of October, 2021. Reply reports, if any, shall be delivered within the times allowed under Rule 53.08 (3)(b) and (c). The parties should not expect to raise new issues in reply reports or that late reports will be admitted with the trial adjourned. This case is ten years old and needs to be completed in the interests of justice.

[12] If the Court of Appeal or the Supreme Court of Canada reinstates claims that have been dismissed by Schabas J. then the parties can speak to how those claims may go forward, perhaps, by then, in conjunction with all the others that will then be awaiting that possible outcome. For now, the decision of Schabas J. must be taken as governing.

[13] The trial will proceed on the s. 8 claim including damages on the date currently set for trial. Counsel are to agree on how the evidence that has already been delivered by affidavit is to be restructured for just a s, 8 trial. If they need assistance with scheduling, I may be spoken to.

F.L. Myers J.

Release Date: May 11, 2021