Rhoxalpharma Inc. v. AB Hassle
The motions judge correctly found the notice of allegation was a pure factual assertion regarding the absence of an inert subcoating; once that factual assertion was disproved the appellant could not recast the notice to raise patent construction issues, and the motions judge properly applied the AB Hassle...
Source-derived case information.
- Citation
- 2002 FCA 147
- Parties
- Appellant: Rhoxalpharma Inc.; Respondent: AB Hassle; Respondent: AstraZeneca AB; Respondent: AstraZeneca Canada Inc.; Respondent: The Minister of National Health and Welfare; Respondent: Takeda Chemical Industries Ltd.
- Court
- Federal Court of Appeal
- Jurisdiction
- Canada
- Judgment Date
- 23 April 2002
- Procedural Posture
- Appeal (federal Court of Appeal) / Reasons for Judgment (bench)
- Outcome
- Appeal dismissed with costs
- Legal Topics
- Notice of Allegation, Construction of Patent, Amendment of Pleadings, Dismissal With Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rhoxalpharma Inc.
Appellant
AB Hassle
Respondent
AstraZeneca AB
Respondent
AstraZeneca Canada Inc.
Respondent
The Minister of National Health and Welfare
Respondent
Takeda Chemical Industries Ltd.
Respondent
Procedural Posture
Appeal (federal Court of Appeal) / Reasons for Judgment (bench)
Legal Issues
- 1 Whether the motions judge erred in refusing to permit the appellant to recast its notice of allegation after failing to prove the facts asserted
- 2 Whether the notice of allegation was a pure factual assertion about absence of an inert subcoating
- 3 Whether the motions judge properly applied AB Hassle v. Canada (Minister of National Health and Welfare) precedent
Ratio Decidendi
The motions judge correctly found the notice of allegation was a pure factual assertion regarding the absence of an inert subcoating; once that factual assertion was disproved the appellant could not recast the notice to raise patent construction issues, and the motions judge properly applied the AB Hassle precedent; therefore the appeal is dismissed.
Court Disposition
Appeal dismissed with costs
Orders
- Appeal dismissed with costs.
Full Case Text
Judgment text and source record
1 paragraphs
Rhoxalpharma Inc. v. AB Hassle Court (s) Database Federal Court of Appeal Decisions Date 2002-04-23 Neutral citation 2002 FCA 147 File numbers A-9-01 Decision Content Date: 20020423 Docket: A-9-01 Neutral citation: 2002 FCA 147 CORAM: DÉCARY J.A. NOËL J.A. NADON J.A. BETWEEN: RHOXALPHARMA INC. Appellant and AB HASSLE, ASTRAZENECA AB and ASTRAZENECA CANADA INC. Respondents and THE MINISTER OF NATIONAL HEALTH AND WELFARE and TAKEDA CHEMICAL INDUSTRIES LTD. Respondents Heard at Ottawa, Ontario, on April 23, 2002. Judgment delivered from the Bench at Ottawa, Ontario, on April 23, 2002. REASONS FOR JUDGMENT OF THE COURT BY: NOËL J.A. Date: 20020423 Docket: A-9-01 Neutral citation: 2002 FCA 147 CORAM: DÉCARY J.A. NOËL J.A. NADON J.A. BETWEEN: RHOXALPHARMA INC. Appellant and AB HASSLE, ASTRAZENECA AB and ASTRAZENECA CANADA INC. Respondents and THE MINISTER OF NATIONAL HEALTH AND WELFARE and TAKEDA CHEMICAL INDUSTRIES LTD. Respondents REASONS FOR JUDGMENT (Delivered from the Bench at Ottawa, Ontario, on April 23, 2002.) NOËL J.A. [1] We can detect no error in the decisions under appeal. [2] The record before the motions Judge and in particular the nature of the evidence led by the parties over the course of the proceeding allowed her to conclude that the notice of allegation was based on a pure assertion of fact, namely that the appellant's proposed product did not contain an inert subcoating. It is only after this assertion was disproved that the appellant attempted to recast its notice of allegation in terms which brought into play the construction of the two patents in issue. [3] In our view, the motions Judge properly applied the decision of this Court in AB Hassle et al. v. Canada (Minister of National Health and Welfare) et al. 256 N.R. 172, when she held that the appellant could not, in effect, rewrite its notice of allegation after realizing that it was unable to establish the facts asserted in support of it. [4] The appeal will be dismissed with costs. "Marc Noël" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-9-01 STYLE OF CAUSE: RHOXALPHARMA INC. v. AB HASSLE ET AL. PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: April 23, 2002 REASONS FOR JUDGMENT OF THE COURT (Décary, Noël, Nadon JJ.A.) RENDERED FROM THE BENCH BY: Noël, J.A. APPEARANCES: Me Marie Lafleur for the Appellant Me Martin F. Sheehan Mr. Gunars A. Gaikis for the Respondents, AB HASSLE, Mr. J. Sheldon Hamilton ASTRAZENECA AB and ASTRAZENECA CANADA INC. SOLICITORS OF RECORD: Smart & Biggar for the Respondents , AB HASSLE, Toronto, Ontario ASTRAZENECA AB and ASTRAZENECA CANADA INC. Fasken Martineau DuMoulin LLP for the Appellant Montreal, Quebec