T-2792-96
B E T W E E N :
MERCK & CO., INC., MERCK FROSST CANADA INC.
ZENECA LIMITED and ZENECA PHARMA INC.
Plaintiffs
- and -
APOTEX INC.
Defendant
REASONS FOR ORDER
ROTHSTEIN J.:
Apotex moves to strike out the Statement of Claim.
Paragraphs 14 to 17 of the Statement of Claim refer to current alleged infringement. They are satisfactory and will not be struck out.
According to the submissions of counsel for the Plaintiffs, paragraphs 18, 19 and 20 of the Plaintiffs' pleading refer to the threat by Apotex of infringement approximately one year from now. The basis is that the Plaintiffs have written to Apotex asking if it will infringe in the future. Apotex has not responded. This is the basis of the threat which the Plaintiffs plead. The Plaintiffs have provided some further particulars by way of a letter but the letter adds nothing to what is already known.
I think these paragraphs must be struck out for two reasons. First, the pleadings are only intended to enable the plaintiffs to get to discovery to bootstrap their claim; while discovery is for the purpose of obtaining admissions from the other party and ascertaining the position of the other party, it is not a fishing expedition simpliciter, which is what it would be used for here. Second, the threat, even if it could be substantiated, is approximately one year away according to Plaintiffs' counsel. At best, these paragraphs are premature. Paragraphs 18, 19 and 20 are struck out.
The Plaintiffs are authorized to amend paragraph 17 to have it read that Apotex has offered for sale and has sold APO-LISINOPRIL in Canada.
Costs to the Defendant in the sum of one thousand dollars inclusive of disbursements in any event of the cause.
"Marshall E. Rothstein"
Judge
Toronto, Ontario
March 21, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-2792-96
STYLE OF CAUSE: MERCK FROSST CANADA INC.,
| and MERCK & CO., INC., ZENECA LIMITED and ZENECA PHARMA INC. |
- and -
| APOTEX INC. |
DATE OF HEARING: MARCH 21, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: ROTHSTEIN, J.
DATED: MARCH 21, 1997
APPEARANCES:
Mr. Gunars A. Gaikis, Ms. McVean
For the Plaintiffs
Mr. David Scrimger
For the Defendant
SOLICITORS OF RECORD:
A. David Morrow, Gunars A. Gaikis
SMART & BIGGAR
Barristers and Solicitors
439 University Avenue, Ste. 2300
Toronto, Ontario
M5G 1Y8
For the Plaintiffs
H.B. Radomski, David Scrimger
Goodman Phillips & Vineberg
Barristers and Solicitors
Suite 2400, Box 24
250 Yonge Street
Toronto, Ontario
M5B 2M6
For the Defendant
FEDERAL COURT OF CANADA
Court No.: T-2792-96
Between:
| MERCK & CO., INC., MERCK |
| FROSST CANADA INC., ZENECA |
| LIMTIED and ZENECA PHARMA INC. |
Plaintiffs
- and -
APOTEX INC.
Defendant
REASONS FOR ORDER