Federal Court of Appeal Decisions

Date: 20120503

Docket: A-490-11

Citation: 2012 FCA 137

CORAM:       SHARLOW J.A.

                        PELLETIER J.A.

                        STRATAS J.A.

BETWEEN:

JANSSEN INC. AND

DAIICHI SANKYO COMPANY, LIMITED

Appellants

and

TEVA CANADA LIMITED

Respondent

Heard at Toronto, Ontario, on May 3, 2012.

Judgment delivered from the Bench at Toronto, Ontario, on May 3, 2012.

REASONS FOR JUDGMENT OF THE COURT BY:                                             PELLETIER J.A.

Date: 20120503

Docket: A-490-11

Citation: 2012 FCA 137

CORAM:       SHARLOW J.A.

                        PELLETIER J.A.

                        STRATAS J.A.

BETWEEN:

JANSSEN INC. AND

DAIICHI SANKYO COMPANY, LIMITED

Appellants

and

TEVA CANADA LIMITED

Respondent

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Toronto, Ontario, on May 3, 2012)

PELLETIER J.A.

[1]               This is an appeal of an interlocutory order, the reasons for which are reported at 2011 FC 1480, in which the trial judge exercised his discretion to dismiss a motion for the joinder of parties.  The motion was made following the infringement/liability portion of a patent infringement action which was bifurcated.  The plaintiffs/appellants seek to add additional parties as plaintiffs on the basis that they are entitled to damages as persons claiming through the patentee.

[2]               Having read the trial judge’s reasons and having heard the submissions of counsel for the appellant, we are not persuaded that the trial judge erred in principle in exercising his discretion as he did, that he seriously misapprehended the facts, or that an obvious injustice will result from his decision: see Janssen Pharmaceutica Inc. v. Apotex, (1988) 82 C.P.R. (3d) 574 at para. 2.  In particular, we are not persuaded that the trial judge’s interpretation of the bifurcation order was such as to amount to an error in principle.

[3]               The appeal will be dismissed with costs fixed at $5,000 inclusive of disbursements.

“J.D. Denis Pelletier”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                              A-490-11

(APPEAL FROM THE ORDER OF THE HONOURABLE JUSTICE HUGHES DATED DECEMBER 15, 2011, DOCKET NO. T-2175-04)

STYLE OF CAUSE:                                                              Janssen Inc. and Daiichi Sankyo Company, Limited v. Teva Canada Limited

PLACE OF HEARING:                                                        Toronto, Ontario

DATE OF HEARING:                                                          May 3, 2012

REASONS FOR JUDGMENT OF THE COURT BY:       SHARLOW, PELLETIER & STRATAS JJ.A.

DELIVERED FROM THE BENCH BY:                            PELLETIER J.A.

APPEARANCES:

SOLICITORS OF RECORD: