Steven G. Mason

Merck sought to impeach Wyeth's composition and formulation patents relating to the Prevnar 13 pneumococcal conjugate vaccine.

The Court found that the composition patent claims were valid but limited to 13 serotypes, as the invention was neither anticipated nor obvious given the complexities of conjugation and immune interference.

However, the Court invalidated the formulation patents, finding that the use of surfactants, buffers, and aluminum salts to stabilize formulations in siliconized containers was obvious in light of prior art, and the specific 13-valent claims were invalid for obviousness-type double patenting.

Following a successful patent infringement action concerning the drug ELIQUIS, the plaintiffs sought a lump sum costs award of over $2.2 million or, alternatively, costs at the upper end of Column V of the Tariff.

The defendants opposed the lump sum approach, citing issues with redacted invoices and potential double accounting from related litigation.

The Federal Court declined to fix a lump sum due to the insufficient detail in the plaintiffs' materials, directing that costs be assessed by an assessment officer at the upper end of Column V of Tariff B.

The plaintiffs brought a motion for leave to file four expert reply reports responding to the defendant's expert evidence on patent invalidity issues.

The defendant objected, arguing the reply was repetitive, argumentative, or should have been anticipated in chief.

The Federal Court allowed the motion with respect to three reports and parts of the fourth, finding that the reply evidence addressed new matters raised by the defense, helped clarify complex science, and would avoid undue prejudice.

The plaintiffs brought actions under the Patented Medicines (Notice of Compliance) Regulations to prevent the defendants from obtaining notices of compliance for generic versions of apixaban (ELIQUIS).

The defendants alleged the asserted claims of the 202 Patent (compound) and 171 Patent (formulation) were invalid on grounds including insufficiency, inutility, anticipation, obviousness, and double patenting.

The Federal Court found that the defendants failed to establish invalidity on any ground.

The 202 Patent was not anticipated or rendered obvious by a prior genus patent (the 330 Patent), and the 171 formulation patent possessed an inventive concept relating to particle size and dissolution rates.

The patents were held valid, and the plaintiffs' applications were granted.

The applicant, PETA, sought judicial review of Astral Media's decision to remove its animal rights advertisements from Toronto bus shelters and the City of Toronto's refusal to compel Astral to reinstate them.

Astral had removed the ads following a complaint from Canada Goose, citing its private contract with PETA which allowed removal of unacceptable content.

The Divisional Court dismissed the application, finding that it lacked jurisdiction because the decisions were private and contractual in nature, not exercises of statutory or public authority subject to public law remedies.

Animal Justice Canada intervened in support of the applicant.

The appellants challenged a CRTC order prohibiting simultaneous substitution during the Super Bowl, issued pursuant to s. 9(1)(h) of the Broadcasting Act.

The majority held that the applicable standard of review was correctness given the statutory appeal mechanism in s. 31(2) of the Act, and that the CRTC's authority under s. 9(1)(h) is limited to issuing mandatory carriage orders requiring television service providers to carry specific channels on specified terms — it does not confer a general power to impose conditions on the carriage of programming services outside that context.

Because the Final Order did not mandate carriage of any channel but merely imposed a condition on providers already carrying one, it exceeded the CRTC's delegated power.

The appeals were allowed and both the Final Decision and Final Order were quashed.

Abella and Karakatsanis JJ. dissented, finding reasonableness the applicable standard and the CRTC's interpretation of s. 9(1)(h) reasonable given its specialized expertise.

The defendants brought two motions to amend their pleadings in an action for "section 8" damages under the Patented Medicines (Notice of Compliance) Regulations.

The proposed amendments sought to introduce a defence based on the ex turpi causa doctrine, arguing that the plaintiff's alleged non-infringing alternative (NIA) would infringe a third-party patent, thus making hypothetical sales unlawful and precluding damages.

The plaintiff opposed, arguing the amendments were not tenable and would cause non-compensable prejudice.

The court, applying Rule 26.01, found the proposed amendments raised tenable legal arguments, distinguishing and interpreting relevant case law on NIAs and the ex turpi causa doctrine.

The court also found that any prejudice to the plaintiff could be compensated by costs or an adjournment.

The motions to amend the pleadings were granted.

The Applicant, Faith Bazos, sought to avoid paying costs to the Respondent, Bell Media Inc., after her application challenging Bell Media's refusal to run her political advertisements was dismissed for lack of jurisdiction.

Bazos argued she was a public interest litigant and should be exempt from costs or pay reduced costs.

The court found that the jurisdictional issue was not novel and did not qualify her as a public interest litigant for the purpose of costs.

The court also found that it was not necessary for her to invoke the Superior Court's jurisdiction instead of the CRTC.

Consequently, the Respondent, as the successful party on the jurisdictional issue, was entitled to partial indemnity costs.

The court fixed costs at $43,117.90, inclusive of fees, disbursements, and HST, finding the amount reasonable given the urgency and complexity of the jurisdictional hearing.

The applicant, a municipal election candidate, sought a declaration and mandatory order from the Superior Court of Justice to compel the respondent broadcaster to run her political advertisements, relying on CRTC regulations and the Charter.

The court dismissed the application, finding that the CRTC had exclusive jurisdiction over the interpretation and enforcement of its regulations.

While the court had concurrent jurisdiction for Charter claims, it declined to exercise it, determining that the entire application should be heard by the specialized tribunal.

This is a costs endorsement following an appeal in a pharmaceutical patent dispute.

The Court of Appeal determined that costs in the cause was not appropriate and awarded costs to the respondent on a partial indemnity basis: $15,000 from Takeda and $25,000 from Abbott, inclusive of disbursements and HST.

This appeal concerns damages claimed by Apotex for lost sales of its generic drug Apo-lansoprazole due to proceedings initiated by Abbott and Takeda under section 6 of the Patented Medicines (Notice of Compliance) Regulations.

The motion judge dismissed the defendants' motion for summary judgment, finding that Apotex would have received regulatory approval on April 17, 2007, but for the section 6 proceedings.

The appellants argued that Apotex's submission was deficient because it lacked a high-fat meal bioequivalence study.

The Court of Appeal upheld the motion judge's decision, finding no legal requirement for such a study and ample evidence supporting approval on the original submission.

VMedia sought a declaration that its new internet retransmitting service, which simultaneously retransmits over-the-air television signals, does not infringe Bell's copyrights in CTV programming.

VMedia argued it was entitled to a compulsory license under section 31 of the Copyright Act because it operated under its Broadcast Distribution Undertaking licenses rather than the CRTC's New Media Exemption Order.

The court found that VMedia's service is delivered and accessed over the internet, meaning it operates under the Exemption Order and is statutorily excluded from the compulsory licensing regime.

VMedia's application was dismissed, and Bell's counter-application for a declaration of copyright infringement and a permanent injunction was granted.

In this patent damages appeal under s. 8 of the Patented Medicines (Notice of Compliance) Regulations, the Court upheld the Federal Court of Appeal decision and dismissed the patentees' appeal.

The Court agreed with the majority's reasoning on liability period, market-entry assumptions, and compensation for lost sales tied to unapproved indications.

The appellant appealed a partial summary judgment dismissing its unjust enrichment claim for disgorgement of the respondents' profits.

The appellant argued that if a settlement agreement between the parties was found unenforceable under section 8 of the Patented Medicines (Notice of Compliance) Regulations, it should be entitled to disgorgement.

The Court of Appeal dismissed the appeal, finding that the appellant's deprivation could not exceed damages calculated under section 8, which do not include disgorgement.

Furthermore, the regulatory scheme provided a valid juristic reason for the respondents' profits, precluding the unjust enrichment claim.

The appellant union challenged the employer's unilaterally imposed mandatory random alcohol testing policy at a paper mill.

The arbitration board allowed the grievance, finding the policy unjustified absent evidence of a workplace alcohol problem.

On judicial review, the board's decision was set aside, and the New Brunswick Court of Appeal dismissed the union's appeal.

The Supreme Court of Canada (6-3) allowed the appeal, holding the arbitration board's decision was reasonable.

The majority found the board properly applied the established arbitral "balancing of interests" test, which requires evidence of enhanced safety risks to justify random testing.

The dissent would have found the board's decision unreasonable for departing from the arbitral consensus on the evidentiary threshold without explanation.

Innovator pharmaceutical companies brought a motion for partial summary judgment seeking dismissal of a generic manufacturer’s claim for disgorgement of revenues or profits based on unjust enrichment.

The claim arose from alleged wrongful invocation of the Patented Medicines (Notice of Compliance) Regulations, which had delayed the generic manufacturer’s market entry for a drug containing lansoprazole.

The court held that s. 8 of the NOC Regulations constitutes a complete statutory code governing compensation for delayed market entry and excludes equitable remedies such as disgorgement of innovators’ profits.

The Federal Court of Appeal’s decision in Apotex v. Eli Lilly Canada Inc. was followed as highly persuasive authority confirming that Parliament deliberately excluded profit disgorgement through the 2006 amendments to the Regulations.

In any event, the statutory framework and the parties’ settlement agreement each constituted juristic reasons defeating the unjust enrichment claim.

The appeal addressed whether a federal regulator had statutory authority to implement a market-based regime requiring negotiations over compensation for retransmission of local television signals.

The majority held the proposed regime exceeded statutory authority and conflicted with the copyright scheme governing retransmission rights and exceptions.

The dissent would have found a sufficient statutory basis and no operational conflict between the two statutes.

The appeal was allowed, with costs throughout.

The appellants sued the respondent for breach of confidence, alleging the respondent misused ticket booking data provided to it for billing and settlement purposes to create a competing data product.

The trial judge dismissed the claim, finding that the information was not communicated in confidence, largely due to the absence of a confidentiality clause in favour of the appellants in the relevant agreements.

The Court of Appeal upheld the trial judge's decision, finding no error in his assessment of the factual matrix and the reasonable person standard.

The applicant was injured in a motor vehicle accident and received statutory accident benefits under section 13 of the Schedule until October 1993.

He applied for arbitration seeking further weekly benefits under section 12 or 13, and a special award.

The arbitrator found that the applicant was not entitled to section 12 income benefits because he was not self-employed at the time of the accident, having ceased his freelance editing business after his wife's death.

The arbitrator also denied further section 13 benefits, finding that medical evidence, including from the applicant's own doctors, established he was capable of performing the essential tasks of daily living by October 1993.

The claim for a special award was dismissed as the insurer did not act unreasonably in failing to provide a computer and chair.

The applicant was awarded expenses.