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 bring a second motion to strike out the Statement of Claim arising from new amendments made to the Statement of Claim by the plaintiffs.
Paragraph 17 has been amended in accordance with the March 21, 1997 order of this Court and is therefore acceptable. Paragraph 18 provides further particulars pertaining to allegations in paragraph 17 and is acceptable.
Paragraph 20 as presently worded speaks to the indefinite future. This is an infringement action and the Statement of Claim may address past and present infringement (and perhaps on a quia timet basis infringement in the immediate future) but should not be a basis for inquiries at discovery or trial about possible infringement at an indefinite time in the future. If paragraph 20 is reworded to state:
| "Apotex continues to offer for sale and sells lisinopril and APO-LISINOPRIL in Canada in response to the demand for same. |
the Court would find that acceptable.
Paragraph 19 in my view, disclose no reasonable cause of action. While it alleges certain facts, even if these facts are true, they do not advance the plaintiffs' infringement action which is what this case is about. Allegations of past and current sales and offers for sale of lisinopril and APO-LISINOPRIL by Apotex are sufficient for that purpose and Apotex's application under the Ontario Drug Benefits Act and Regulations is superfluous. Paragraph 19 shall be struck.
Counsel for Apotex submits that the plaintiffs' new amendments are an abuse of the process and on that ground the entire Statement of Claim should be struck. While I cannot rule out cases in which a party's abusive behaviour with respect to a portion of pleadings may justify striking the whole pleading, this is not such a case.
Subject to the plaintiffs' amending paragraph 20 as set forth above, the motion is allowed with respect only to paragraph 19 and is otherwise dismissed.
"Marshall E. Rothstein"
Judge
Toronto, Ontario
April 21, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-2792-96
STYLE OF CAUSE: MERCK & CO., INC., ET AL
- and -
| APOTEX INC. |
DATE OF HEARING: APRIL 21, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: ROTHSTEIN, J.
DATED: APRIL 21, 1997
APPEARANCES:
Mr. Gunars Gaikis
Mr. David Morrow
For the Plaintiffs
Mr. H.B. Radomski
Mr. David Scrimger
For the Defendant
SOLICITORS OF RECORD:
SMART & BIGGAR
Barristers and Solicitors
P.O. Box 39, Station P
439 University Avenue
Suite 2300
Toronto, Ontario
M5S 2S6
For the Plaintiffs
Goodman Phillips & Vineberg
Suite 2400
250 Yonge Street
Toronto, Ontario
M5B 2M6
For the Defendant
FEDERAL COURT OF CANADA
Court No.: T-2792-96
Between:
MERCK & CO., INC., ET AL
Plaintiffs
- and -
| APOTEX INC. |
Defendant
REASONS FOR ORDER