PRACTICE |
Judgments and Orders |
Summary Judgment |
Apotex Inc. v. Merck & Co., Inc.
T-411-01
2004 FC 314, Snider J.
2/3/04
24 pp.
Motion for summary judgment by defendants under Federal Court Rules, 1998, rr. 213, 220 in action by Apotex to obtain damages pursuant to Patented Medicines (Notice of Compliance) Regulations (Regulations), s. 8--S. 8, as exists today, imposing civil liability on first person (Merck) where order of prohibition subsequently dismissed by court--Apotex commenced action seeking damages in respect of prohibition proceedings relying on s. 8 as appearing in Regulations today and, in alternative, on s. 8 as existing prior to amendments made in 1998--Apotex also claiming damages against Merck for unjust enrichment--Review of principles governing summary judgment--At heart of dispute issues of interpretation of old s. 8, new s. 8--For discretionary decision to be made under r. 216(2)(b), sufficient that responding party put forward cogent reasons why determination of question of law best left to trial judge--Significant gap in evidence required to determine proper interpretation of provisions-- Missing evidence relating to intent, object of regulations underlying statutory framework--Further evidence from defendants, third party and government officials relevant to determination of issues here--Much of such evidence will be contested and thus properly dealt with at trial--Apotex should not be precluded, through summary judgment, from leading this evidence--Trial likely necessary to establish proper evidence for determination of issues related to interpretation of Regulations, s. 8--Firstly, as genuine issue for trial, r. 216(1) not available to defendants--Secondly, few, if any efficiencies to be gained, by determining these questions of law on incomplete record--Motion dismissed in respect of both issues related to interpretation of s. 8--Issue of availability of claim for unjust enrichment interwoven with interpretation of s. 8--Much of evidence that would be produced relating to contextual framework for Regulations could also be relevant to issue of unjust enrichment-- Accordingly, genuine issue for trial--Finally, as to request questions be determined preliminary to any trial pursuant to r. 220(1), nothing further could be gained from adding this extra step to already lengthy process--Issues of statutory interpretation best finally settled after trial--Motion dismissed --Federal Court Rules, 1998, SOR/98-106, rr. 213, 216, 220--Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, s. 8 (as am. by SOR/98-166, s. 8).