Laboratoires Servier v. Apotex Inc.

Laboratoires Servier v. Apotex Inc.

The motions were dismissed because the movants failed to satisfy r.104(1)(b): they did not 'ought to have been joined' in the strict sense and were not necessary to ensure the counterclaim could be effectually and completely determined; joinder would likely cause prejudice and delay to a trial lawfully scheduled and would not bind the movants to findings in that trial given differences in claims, parties and evidence.

Citation
2007 FC 1210
Parties
Plaintiff (defendant to the Counterclaim): LES LABORATOIRES SERVIER; Plaintiff (defendant to the Counterclaim): ADIR; Plaintiff (defendant to the Counterclaim): ORIL INDUSTRIES; Plaintiff (defendant to the Counterclaim): SERVIER CANADA INC.; Plaintiff (defendant to the Counterclaim): SERVIER LABORATORIES (AUSTRALIA) PTY LTD; Plaintiff (defendant to the Counterclaim): SERVIER LABORATORIES LIMITED; Defendant (plaintiff by Counterclaim): APOTEX INC.; Defendant (plaintiff by Counterclaim): APOTEX PHARMACHEM INC.; Proposed Defendant to Counterclaim (movant): SANOFI-AVENTIS DEUTSCHLAND GmbH; Proposed Defendant to Counterclaim (movant): SCHERING CORPORATION
Court
Federal Court
Jurisdiction
Canada
Judgment Date
19 November 2007
Procedural Posture
Motion Under Federal Courts Rules R.104(1)(b) to Join Proposed Defendants to a Patent Infringement/competition Act Counterclaim / Motions Heard Pre Trial; Trial in Perindopril Action Scheduled to Commence February 25, 2008 (pre Trial Stage)
Outcome
Motions of Sanofi-Aventis Deutschland GmbH and Schering Corporation to be joined as defendants to the counterclaim are dismissed with costs
Legal Topics
Joinder, Federal Courts Rules R.104(1)(b), Section 45 Competition Act, Conspiracy, Multiplicity of Proceedings, Judicial Comity
Source Language
English
Patent Law Competition Law Civil Procedure (joinder) Joinder Federal Courts Rules R.104(1)(b) Section 45 Competition Act Conspiracy Multiplicity of Proceedings +1 more

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Parties

LES LABORATOIRES SERVIER

Plaintiff (defendant to the Counterclaim)

ADIR

Plaintiff (defendant to the Counterclaim)

ORIL INDUSTRIES

Plaintiff (defendant to the Counterclaim)

SERVIER CANADA INC.

Plaintiff (defendant to the Counterclaim)

SERVIER LABORATORIES (AUSTRALIA) PTY LTD

Plaintiff (defendant to the Counterclaim)

SERVIER LABORATORIES LIMITED

Plaintiff (defendant to the Counterclaim)

APOTEX INC.

Defendant (plaintiff by Counterclaim)

APOTEX PHARMACHEM INC.

Defendant (plaintiff by Counterclaim)

SANOFI-AVENTIS DEUTSCHLAND GmbH

Proposed Defendant to Counterclaim (movant)

SCHERING CORPORATION

Proposed Defendant to Counterclaim (movant)

Procedural Posture

Motion Under Federal Courts Rules R.104(1)(b) to Join Proposed Defendants to a Patent Infringement/competition Act Counterclaim / Motions Heard Pre Trial; Trial in Perindopril Action Scheduled to Commence February 25, 2008 (pre Trial Stage)

Legal Issues

  1. 1 Whether Sanofi-Aventis Deutschland GmbH and Schering Corporation ought to have been joined as defendants to Apotex's counterclaim under r.104(1)(b)
  2. 2 Whether their presence is necessary to ensure all matters in dispute may be effectively and completely determined
  3. 3 Whether joinder would prejudice the parties or cause delay

Ratio Decidendi

The motions were dismissed because the movants failed to satisfy r.104(1)(b): they did not 'ought to have been joined' in the strict sense and were not necessary to ensure the counterclaim could be effectually and completely determined; joinder would likely cause prejudice and delay to a trial lawfully scheduled and would not bind the movants to findings in that trial given differences in claims, parties and evidence.

Court Disposition

Motions of Sanofi-Aventis Deutschland GmbH and Schering Corporation to be joined as defendants to the counterclaim are dismissed with costs

Orders

  • Motions dismissed with costs; Sanofi-Aventis Deutschland GmbH and Schering Corporation are not joined as defendants to the Counterclaim in Court File T-1548-06