Court to Consider Prothonotary’s Order De Novo
Janssen-Ortho Inc. v. Apotex Inc. 2009 FC 783 (Hughes J.)

July 29, 2009

Jason Markwell and Kristin Wall for the Applicants, Janssen-Ortho Inc. and
Ortho-McNeil Pharmaceutical, Inc.
Andrew R. Brodkin and Sandon Shogilev for the Respondent, Apotex Inc.

There were two motions before the Court, the first by way of an appeal from an order of Prothonotary Aalto, dated June 12, 2009 in which he dismissed these proceedings pursuant to Section 6(5)(b) of the PM(NOC) Regulations.  The second was a motion by the Applicants for the designation of the material filed in that motion as confidential and for a stay of Prothonotary Aalto’s order.  Justice Hughes determined that the decision of Prothonotary Aalto was correct and was inclined to endorse Prothonotary Aalto’s reasons for that decision even though he was quite aware that he was to consider the matter de novo.  Upon discussion with counsel at the hearing, Justice Hughes issued an order which was predicated upon Appellants’ counsel indicating to the Court that he would be appealing an order dismissing its appeal from Prothonotary Aalto’s decision.

As a result, the appeal from the Order of Prothonotary Aalto was dismissed without prejudice to the Applicants’ rights to appeal the matter to the Federal Court of Appeal.  The motion for a stay was withdrawn.

By:  Peter W. Choe, Gowling Lafleur Henderson LLP