Susan Fridlyand

The plaintiff pharmaceutical manufacturer sued the corporate defendants and their sole director, a pharmacist, alleging unauthorized 'vial-splitting' of a specialty ophthalmic drug.

The individual defendant moved to strike the claims against him personally, arguing they duplicated the claims against the corporate defendants.

The court struck the intentional tort claims but allowed the negligence and unjust enrichment claims to proceed, finding it possible the individual acted in his personal capacity as a pharmacist.

The plaintiff also successfully moved to strike a paragraph in the statement of defence that referenced the contents of its complaint to the Ontario College of Pharmacists, as such contents are inadmissible under section 36(3) of the Regulated Health Professions Act.

The defendants brought a motion to dismiss the plaintiff's fraud action for inordinate and inexcusable delay spanning over nine years.

The plaintiff attributed delays to corporate restructurings, database corruption, and translation requirements.

The court found the delay inordinate and inexcusable, noting the plaintiff's responsibility to advance the action and the lack of compelling reasons for the multi-year inaction.

The court also found a substantial risk that a fair trial would not be possible due to fading memories of critical viva voce evidence, especially given the fraud allegations.

The motion was granted, and the action dismissed with costs to the defendants.