Late Amendments Revising the Quantum of Damages Sought Upwardly Are Allowable
Apotex Inc. v. Wellcome Foundation Limited, 2009 FC 949 (Mr. Justice Roger T. Hughes)

September 22, 2009

Andrew Brodkin and Julie Rosenthal for Apotex Inc. (“Apotex”)
Mary Patterson for the Novopharm Ltd. (“Novopharm”)
Patrick Kierans, Jane Caskey and Amy Grenon for The Wellcome Foundation Limited

This was an appeal by Apotex and Novopharm of a Prothonotary’s decision to grant leave to The Wellcome Foundation Limited and Glaxo Wellcome Inc. (collectively “GSK”) to file a Further Fresh as Amended Statement of Issues. 

This proceeding related to a number of patent actions that began in 1991 through 1993, which were bifurcated with respect to compensation.  In 2002, the Supreme Court of Canada held certain claims to be valid and infringed.  The reference as to damages was initiated in 2003, at which time GSK claimed damages totaling $210M.  This amount was amended on consent in 2005 to total $300M.  The amendments at issue in this appeal would further raise that total to $675M.

With respect to standard of review, the Court held that it should not approach the matter de novo, but rather it should examine the matter to determine if an error of law was made or whether there was a material misapprehension of the relevant facts.  In this regard, the Court was satisfied that GSK was not seeking amendments that would add a substantial new issue or dispose of an issue. The effect of the amendments would be to increase the value of the claim substantially, but not the claim itself or the basis for the claim.

In considering the Prothonotary’s Order granting leave to amend, the Court accepted the general proposition that amendments revising the quantum of damages sought upwardly are allowable, even at a late date.  With respect to GSK’s evidence supporting its amendment, the Court described it as “scanty”.  However, notwithstanding this description, the Court decided that GSK was not required to prove its case conclusively, and that there was ample time for further discovery on the amendments by Apotex and Novopharm.  No prejudice not compensable in costs was shown.  GSK was not limited to its previous claim for $300M on the basis that it was a binding admission, as the law allows for such statements to be revised. 

Accordingly, the Court dismissed the appeal of the Prothonotary’s Order granting GSK leave to amend.  Also, the Court varied the Prothonotary’s Order as to costs, as the strength or weakness of the basis for the amendments, and therefore any award of costs, ought to be left to the Trial Judge.

By: Michael Crichton, Gowling Lafleur Henderson LLP