Date: 20040127
Docket: A-188-03
Citation: 2004 FCA 43
CORAM: STRAYER J.A.
SEXTON J.A.
BETWEEN:
BRISTOL-MYERS SQUIBB CANADA INC.
Appellant
(Defendant)
and
APOTEX INC.
Respondent
(Plaintiff)
and
HER MAJESTY THE QUEEN and
BRISTOL-MYERS SQUIBB COMPANY
Respondents
(Defendants)
Heard at Toronto, Ontario, on January 27, 2004.
Judgment delivered from the Bench at Toronto, Ontario, on January 27, 2004.
REASONS FOR JUDGMENT OF THE COURT BY: STRAYER J.A.
Date: 20040127
Docket: A-188-03
Citation: 2004 FCA 43
CORAM: STRAYER J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
BRISTOL-MYERS SQUIBB CANADA INC.
Appellant
(Defendant)
and
APOTEX INC.
Respondent
(Plaintiff)
and
HER MAJESTY THE QUEEN and
BRISTOL-MYERS SQUIBB COMPANY
Respondents
(Defendants)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on January 27, 2004)
[1] We are of the view that on the basis of the arguments before him it was open to the learned Motions Judge to conclude that there was a genuine issue for trial which would require a more complete argument and possibly evidence. Even if, as the appellant urges, this involved a genuine issue which is a question of law, the Motions Judge had a discretion under Rule 216(2)(b) as to whether he would grant summary judgment. We see nothing unreasonable in the manner in which that discretion was exercised.
[2] The appeal will therefore be dismissed with party-party costs fixed at $10,000 inclusive of G.S.T. and disbursements.
"B. L. Strayer"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET : A-188-03
STYLE OF CAUSE : BRISTOL-MYERS SQUIBB CANADA INC.
Appellant
(Defendant)
and
APOTEX INC.
Respondent
(Plaintiff)
and
HER MAJESTY THE QUEEN and BRISTOL-MYERS SQUIBB COMPANY
Respondents
(Defendants)
PLACE OF HEARING : TORONTO, ONTARIO
DATE OF HEARING : JANUARY 27, 2004
REASONS FOR JUDGMENT
OF THE COURT : (STRAYER, SEXTON, EVANS JJ.A.)
DELIVERED FROM THE
BENCH BY: STRAYER J.A.
APPEARANCES :
Mr. Alexander G. Macklin, Q.C.
Ms. Cristin Wagner FOR THE APPELLANT
Mr. Andrew Brodkin
Ms. Julie Perrin FOR THE RESPONDENT, APOTEX INC.
SOLICITORS OF RECORD :
Gowling Lafleur Henderson LLP
Ottawa, Ontario FOR THE APPELLANT
Goodmans LLP
Toronto, Ontario FOR THE RESPONDENT, APOTEX INC.