Motion for Consolidation Dismissed
Sanofi-Aventis Canada Inc. v. Novopharm Limited, 2009 FC 1285 (Snider J.)

December 17, 2009

Gunars A. Gaikis, Andrew Mandlsohn and Timothy O. Stevenson for Sanofi-Aventis Canada Inc.
Anthony G. Creber for Schering Corporation
Jonathan Stainsby and Keya Dasgupta for Novopharm Limited
Donald M. MacOdrum and Rosamaria Longo for Laboratoire Riva Inc. and Pharmascience Inc.
Nando de Luca and Jerry Topolski for Apotex Inc.

Sanofi brought a motion to have three actions heard together with a common record.  Each action involved a claim for damages under Section 8 of the PM(NOC) Regulations in relation to the drug ramipril and Canadian Patent No. 1,341,206.  Novopharm’s and Laboratoire Riva’s actions arose as counterclaims in Sanofi’s actions for infringement while Apotex commenced its own action. Although Novopharm and Laboratoire Riva strongly opposed this motion, Apotex supported it.

Snider J. identified and addressed four issues for a consolidation of actions pursuant to Rule 105(a) of the Federal Courts Rules. First, having different plaintiffs in each section 8 action did not militate strongly against consolidation as the defendants were common in each. Second, despite common evidence of the operation of the market for ramipril, the actions dealt with the individualized damages of each plaintiff and would require evidence specific to each. The Court concluded that the “major factual differences” between the section 8 actions did not support consolidation. Third, Sanofi failed to establish that it would suffer prejudice if the status quo was maintained and that the plaintiffs would not if consolidation was ordered. The Court held that even if Sanofi’s claims were based on “but for” market share determinations, which was strongly challenged by Novopharm, it could still tender any “but for” market evidence necessary to defend the claims in each action and obtain evidence from other generics through subpoenas. It was also noted that Laboratoire Riva, a smaller generic, might pay a heavy cost to pursue a consolidated action.  Lastly, despite obvious potential efficiencies arising from consolidation, coordinating four parties with unaligned interests would result in “a situation close to procedural paralysis”. 

Accordingly, the motion for consolidation was dismissed. However, to avoid the possibility of inconsistent findings, Snider J. ordered that the actions be heard consecutively by one judge, and that they be managed by the same case management prothonotary or judge.

By: Michael Crichton, Gowling Lafleur Henderson LLP