Early Trial Initiative Requires an Efficient Discovery Process

Apotex brought this motion to consolidate a claim with a defence in a related action, as well as to make numerous other amendments to its pleading, including adding several new defences. Both actions were brought in the spring of 2009 and trial dates had been set for April 2011 under the Court’s early trial initiative.

The Court made pertinent comments about its expectations of parties who request a trial date under the early trial initiative. The Court noted that attempting to shoe-horn into two years the never ending discovery and amendments process that used to take five to ten years is simply unsustainable for most litigants and most lawyers, not to mention the Court.

In respect of the dispute before it, the Court emphasized that in pressing for and committing to a trial in the spring of 2011, intended to last five weeks, the parties have committed to a schedule that does not allow infinite time for discoveries and to a trial of fixed duration. The Court expects and demands from the parties that with a trial expected to being in less than 15 months, with pleadings closed and with a known history of litigation in Canada and other jurisdictions over the drug at issue, they have a clearly developed and articulated theory of their respective case, of what is required to prove it at trial, and how they intend to do so. The Court continued that there is no time in the schedule, and also little trial time, for embarking on fishing expeditions, for cobbling up a strategy as one goes or for being unable to articulate a coherent theory of the case until all discoveries are completed or until the eve of trial.

In discussing prejudice from any proper proposed amendments before it, the Court remarked that the prejudice identified could be avoided or mitigated by imposing other conditions, such as restricting discoveries by Apotex or re-bifurcating the issues so that the subject matter of the new amendments would to be dealt in the “damages” stage.

In reviewing the amendments before it, the Court found Apotex’s proposed amendments concerning experimental use permissible (with particulars), allowed the amendment to declare non-infringement with respect to other salts (modifying the name of the party), and allowed the limitation defence. In respect of Apotex’s various proposed set-off defences, the Court found the claim for a “break fee” clearly abusive and vexatious, the claim based on the tort of deceit or negligent misrepresentation frivolous and vexatious, and the claim of abuse of process without chance of success. The Court permitted most of the amendments concerning negotiations leading to the 2006 Agreements as factual, as well as a defence of disentitlement to monetary remedies in connection with sales in other jurisdictions.

In having not allowed the proposed set-off defences, the Court stated it was unable to identify any prejudice to Sanofi at that time which would cause it to impose conditions on discovery.

By: Christopher Heer, Bennett Jones LLP