Apotex Inc. v. Merck & Co. Inc.

Apotex Inc. v. Merck & Co. Inc.

The cross-appeal is dismissed because the prothonotary's order requiring Merck to include documents relevant to damages in its affidavit of documents was within her discretion and not clearly wrong or inconsistent with the Court of Appeal judgment; the prothonotary expressly did not decide bifurcation and Merck may pursue a separate bifurcation motion.

Citation
2004 FC 1131
Parties
Plaintiff (defendant by Counterclaim): Apotex Inc.; Defendant (plaintiff by Counterclaim): Merck & Co. Inc.; Defendant (plaintiff by Counterclaim): Merck Frosst Canada Inc.
Court
Federal Court
Jurisdiction
Canada
Judgment Date
16 August 2004
Procedural Posture
Civil (patent Infringement) / Cross Appeal From Prothonotary Order (rule 51 Motion)
Outcome
Cross-appeal dismissed with costs in favour of Apotex.
Legal Topics
Discovery, Bifurcation, Affidavit of Documents, Standard of Review, Costs
Source Language
English
Intellectual Property Civil Procedure Appeal Discovery Bifurcation Affidavit of Documents Standard of Review Costs

Case Brief

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Parties

Apotex Inc.

Plaintiff (defendant by Counterclaim)

Merck & Co. Inc.

Defendant (plaintiff by Counterclaim)

Merck Frosst Canada Inc.

Defendant (plaintiff by Counterclaim)

Procedural Posture

Civil (patent Infringement) / Cross Appeal From Prothonotary Order (rule 51 Motion)

Legal Issues

  1. 1 Whether the prothonotary erred in ordering Merck to include documents relevant to damages in its affidavit of documents
  2. 2 Whether the prothonotary's order was inconsistent with the Federal Court of Appeal judgment
  3. 3 What standard of review applies to discretionary interlocutory orders of a prothonotary

Ratio Decidendi

The cross-appeal is dismissed because the prothonotary's order requiring Merck to include documents relevant to damages in its affidavit of documents was within her discretion and not clearly wrong or inconsistent with the Court of Appeal judgment; the prothonotary expressly did not decide bifurcation and Merck may pursue a separate bifurcation motion.

Court Disposition

Cross-appeal dismissed with costs in favour of Apotex.

Orders

  • Merck's cross-motion appealing the order of Prothonotary Tabib dated February 4, 2004 is dismissed with costs in favour of Apotex.