BETWEEN:
AVENTIS PHARMA S.A. and
AVENTIS PHARMA INC.
Appellants
(Plaintiffs)
and
NOVOPHARM LIMITED
Respondent
(Defendant)
Heard at Toronto, Ontario, on November 21, 2005.
Judgment delivered from the Bench at Toronto, Ontario, on November 21, 2005.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A.
Docket: A-295-05
Citation: 2005 FCA 390
CORAM: DÉCARY J.A.
EVANS J.A.
SHARLOW J.A.
BETWEEN:
AVENTIS PHARMA S.A. and
AVENTIS PHARMA INC.
Appellants
(Plaintiffs)
and
NOVOPHARM LIMITED
Respondent
(Defendant)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on November 21, 2005)
[1] This is an appeal by Aventis Pharma S.A. from a decision of Justice Russell of the Federal Court in which he dismissed Aventis' motion for an interlocutory injunction to restrain Novopharm Ltd. from selling in Canada its product, Novo-enoxaparin. Aventis alleges that the sale of Novo-enoxaparin will infringe Aventis' Canadian Patent No. 2,045,433 ("the 433 patent") for the preparation process and use of its medicine, marketed as LOVENOX. The motion arises from Aventis' action against Novopharm for the infringement of the 433 patent.
[2] Having held that Aventis had raised a serious issue, the Judge concluded that Aventis had not established that it would suffer irreparable harm if the interlocutory injunction were not granted pending the outcome of the trial. Accordingly, he found it unnecessary to consider where the balance of convenience lay. The decision is reported as Aventis Pharma S.A. and Aventis Pharma Inc. v. Novopharm Limited, 2005 FC 815.
[3] On February 28, 2005, the Minister of Health issued a Notice of Compliance to Novopharm pursuant to the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, which authorized it to market Novo-enoxaparin in Canada. Since Aventis has not listed the 433 patent in its patent list, it had not been able to apply for an order of prohibition to restrain the Minister from issuing the Notice.
[4] The grant of an interlocutory injunction is an extraordinary remedy within the discretion of the Motions Judge. An appellate court will only interfere with the Judge's exercise of discretion if it was based on an error of law (determined on the standard of correctness), a palpable and overriding error of fact, the consideration of irrelevant factors or the omission of factors that ought to have been considered, or if the decision was unreasonable, in the sense that it was not compatible with the judicial exercise of discretion.
[5] In our view, it was open to Russell J. to conclude on the basis of the evidence before him that, if Aventis succeeds at trial, it will be possible to calculate an amount of damages that will compensate Aventis for the various heads of economic loss on which it relies, so that, on the facts of this case, an award of damages is an adequate remedy. Hence, the Judge did not err in concluding that Aventis had failed to show irreparable harm. Unlike CIBA-GEIGY Canada Ltd. v. Novopharm Ltd. (1994), 56 C.P.R. (3d) 289 at 337 (F.C.T.D.), this is not a case where the Judge was of the view that the assessment of damages would essentially be a "guess".
[6] In view of his finding that Aventis had not proved irreparable harm, the Judge did not commit an error of law by not going on to consider where the balance of convenience lay. Further, once the Judge had decided that Aventis had shown that there was a serious issue to be tried, further consideration of the relative strengths of the claim and of the defence would have been relevant only if he had had to consider the balance of convenience.
[7] For these reasons, the appeal will be dismissed with costs.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-295-05
STYLE OF CAUSE: AVENTIS PHARMA S.A. and
AVENTIS PHARMA INC.
Appellants
(Plaintiffs)
and
NOVOPHARM LIMITED
Respondent
(Defendant)
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 21, 2005
REASONS FOR JUDGMENT
OF THE COURT BY: (DÉCARY, EVANS & SHARLOW JJ.A.)
DELIVERED FROM THE
BENCH BY: EVANS J.A.
APPEARANCES BY:
A. David Morrow
Steven B. Garland FOR THE APPELLANTS (PLAINTIFFS)
Jonathan Stainsby
Gary D. D. Morrison FOR THE RESPONDENT (DEFENDANT)
SOLICITORS OF RECORD:
SMART & BIGGAR
Ottawa, Ontario FOR THE APPELLANTS (PLAINTIFFS)
HEENAN BLAIKIE LLP
Lawyers
Toronto, Ontario FOR THE RESPONDENT (DEFENDANT)