Date: 20020103
Docket: T-1169-01
Neutral citation: 2002 FCT 1424
Toronto, Ontario, Thursday the 3rd day of January, 2002
PRESENT: The Honourable Mr. Justice McKeown
BETWEEN:
APOTEX INC.
Plaintiff
- and -
MERCK & CO., INC. and
MERCK FROSST CANADA & CO.
Defendants
AMENDED REASONS FOR ORDER AND ORDER
[1] The defendants' motion for an order requiring the plaintiff to either plead the requisite material facts or furnish particulars of the allegations set out in paragraphs 5, 6, 10, 20, 22, 25, 27-37 and 40 of the statement of claim is dismissed.
[2] The principles governing particulars are set out by Marceau J. in Embee Electronic Agencies Ltd. v. Agence Sherwood Agencies Inc. (1979), 43 C.P.R. (2d) 285 F.C.T.D. where he states at pages 286, 287:
... a distinction must be made between a request for particulars made prior to the filing of the statement of defence and one made at a later stage of the proceedings. Before trial, after the issues have been defined, a defendant is entitled to be informed of any and every particular which will enable him to properly prepare his case, so that he may not be taken by surprise at the trial. But, before the filing of the defence, the right of a defendant to be furnished particulars is not so broad, since it does not have the same basis and serves a different purpose. A defendant should not be allowed to use a request for particulars as a means to pry into the brief of his opponent with a view to finding out about the scope of the evidence that might be produced against him at trial, nor should he be allowed to use such a request as a means to go on a sort of fishing expedition in order to discover some grounds of defence still unknown to him. At that early stage, a defendant is entitled to be furnished all particulars which will enable him to better understand the position of the plaintiff, see the basis of the case made against him and appreciate the facts on which it is founded so that he may reply intelligently to the statement of claim and state properly the grounds of defence on which he himself relies, but he is not entitled to go any further and require more than that.
[3] This is a case where particulars are being sought prior to the filing of the statement of defence. MacNair J. in Canadian Olympic Association v. National Gym Clothing (1985) 2 C.P.R. (3d) 145 F.C.T.D. points out at page 147:
Generally speaking, the burden rests on the defendant of showing that the particulars furnished by the reply do not at least give him some fair idea of the outline of the case made out against him so that he can properly plead thereto.
[4] In the case before me, in the statement of claim the plaintiff, Apotex, claims damages suffered by it in respect of the drug Lovastatin by reason of the commencement of the proceeding by the defendants pursuant to the Patented Medicines (Notice of Compliance) Regu1ations (the "Patent Regulations"). The plaintiff Apotex takes the position that under subsection 8(1) of the Patent Regulations, it does not have to deal with the question of infringement of a patent, since pursuant to subsection 8(3), the Court may order relief without regard to whether Merck has commenced an action for patent infringement. Such an action was commenced by Merck in 1997. I do not have to decide whether section 8 precludes any defence with respect to the question of whether the patent was infringed by the plaintiff. However, in my view, Apotex does not have to deal with this defence at the present time since Merck has not filed a statement of defence. Merck does have a fair outline of Apotex's case. Furthermore, much of the legislative history of this matter has been set out in Merck & Co. v. Minister of Health (1998), 79 C.P.R. (3d) 57 (F.C.T.D.).
[5] The defendant Merck also wants particulars of the statement that: "Merck U.S. directs and exercises complete control over the operations of Merck Canada". However, Apotex goes on to set out in paragraph 10, five instances relating to the matter before me where they allege that Merck U.S. directs such complete control. This issue will be determined by the trial judge and there is no allegation by Apotex seeking to pierce the corporate veil.
[6] Merck also claims they are entitled to know generally how Apotex incurred expenses and what specific conduct of Merck led to the alleged necessary incursion of such expenses. They also need to know the material facts concerning the price alleged to be charged. At this stage of the action, it is not necessary for the purposes of pleading to specify the quantum of damages incurred. This is a matter of evidence.
[7] I also fail to see the relevance of the contractual relationship between AFI and Apotex since Apotex did not allege any contract between the two sister companies.
ORDER
IT IS ORDERED THAT:
1. This action shall be managed as a specially managed proceeding.
2. The Defendants' motion for an Order requiring the Plaintiff to either plead the requisite materials facts or furnish particulars of the allegations set out in paragraphs 5, 6, 10, 20, 22, 25, 27-37 and 40 of the Statement of Claim is dismissed.
3. The Defendants' Statement of defence shall be served and filed within 30 days of the date of this Order.
4. Costs to the Plaintiff, Apotex.
"W.P. McKeown"
JUDGE
Toronto, Ontario
January 3, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1169-01
STYLE OF CAUSE: APOTEX INC.
Plaintiff
- and -
MERCK & CO., INC. and
MERCK FROSST CANADA & CO.
Defendants
DATE OF HEARING: MONDAY, DECEMBER 17, 2001
PLACE OF HEARING: TORONTO, ONTARIO
AMENDED REASONS FOR ORDER
AND ORDER BY: McKEOWN J.
DATED: THURSDAY, JANUARY 3, 2002
APPEARANCES: Mr. Andrew Brodkin
For the Plaintiff
Mr. Bill Black
For the Defendants
SOLICITORS OF RECORD: Goodmans
Barristers & Solicitors
250 Yonge St., Suite 2400
Toronto, Ontario
M5B 2M6
For the Plaintiff
McCarthy Tetrault
Barristers & Solicitors
Suite 4700
66 Wellington St. W.
Toronto Dominion Bank Tower
Toronto, Ontario
M5K 1E6
For the Defendants
FEDERAL COURT OF CANADA
Date: 20020103
Docket: T-1169-01
Between:
APOTEX INC.
Plaintiff
- and -
MERCK & CO., INC. and
MERCK FROSST CANADA & CO.
Defendants
AMENDED REASONS FOR ORDER
AND ORDER