Sherman v. Pfizer Canada Inc.

Sherman v. Pfizer Canada Inc.

The appeal is dismissed because the prothonotary correctly applied the Eli Lilly test under Rule 249 and did not commit reviewable error: Apotex failed to establish that a reliable quantitative test exists or that there is a reasonable likelihood such a test could be developed and performed in time to be useful at trial; the motion was also late and the prothonotary reasonably exercised case management discretion to deny production of samples.

Citation
2021 FC 554
Parties
Plaintiff/defendant by Counterclaim: Bernard Charles Sherman; Plaintiff/defendant by Counterclaim: Apotex Inc.; Defendant/plaintiff by Counterclaim: Pfizer Canada Inc.; Defendant/plaintiff by Counterclaim: Pfizer Inc.; Defendant/plaintiff by Counterclaim: Doe Co. and all other entities unknown to the Plaintiffs which are part of the Pfizer group of companies
Court
Federal Court
Jurisdiction
Canada
Judgment Date
7 June 2021
Procedural Posture
Patent Infringement (validity and Infringement) / Appeal Under Rule 51 of Prothonotary Order Denying Rule 249 Sample Production; Pre Trial Case Management (trial Scheduled January 17, 2022)
Outcome
Appeal dismissed; Order of Prothonotary Milczynski dated May 4, 2021 affirmed.
Legal Topics
Sample Production Under Rule 249, Rule 51 Appeal, Expert Evidence on Testing, Case Management Discretion, Timing of Disclosure, Quantitative Analytical Testing
Source Language
English
Intellectual Property Patent Law Civil Procedure Evidence Discovery Sample Production Under Rule 249 Rule 51 Appeal Expert Evidence on Testing +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 11 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Bernard Charles Sherman

Plaintiff/defendant by Counterclaim

Apotex Inc.

Plaintiff/defendant by Counterclaim

Pfizer Canada Inc.

Defendant/plaintiff by Counterclaim

Pfizer Inc.

Defendant/plaintiff by Counterclaim

Doe Co. and all other entities unknown to the Plaintiffs which are part of the Pfizer group of companies

Defendant/plaintiff by Counterclaim

Procedural Posture

Patent Infringement (validity and Infringement) / Appeal Under Rule 51 of Prothonotary Order Denying Rule 249 Sample Production; Pre Trial Case Management (trial Scheduled January 17, 2022)

Legal Issues

  1. 1 Whether the Prothonotary applied the correct Eli Lilly test under Rule 249
  2. 2 Whether the Prothonotary made palpable and overriding errors of fact or mixed fact and law in finding no available reliable quantitative test
  3. 3 Whether the timing of Apotex's request near trial justified denial of sample production

Ratio Decidendi

The appeal is dismissed because the prothonotary correctly applied the Eli Lilly test under Rule 249 and did not commit reviewable error: Apotex failed to establish that a reliable quantitative test exists or that there is a reasonable likelihood such a test could be developed and performed in time to be useful at trial; the motion was also late and the prothonotary reasonably exercised case management discretion to deny production of samples.

Court Disposition

Appeal dismissed; Order of Prothonotary Milczynski dated May 4, 2021 affirmed.

Orders

  • The motion by the Plaintiffs/Defendants by Counterclaim pursuant to Rule 51 appealing and setting aside the Order of Prothonotary Milczynski dated May 4, 2021 is dismissed.
  • The Defendants/Plaintiffs by Counterclaim (Pfizer) shall have their costs of this motion.