PRACTICE |
Novartis Pharmaceuticals Canada Inc. v. Novopharm Ltd.
A-7-00
2001 FCA 251, Isaac J.A.
28/8/01
11 pp.
Separate determination of issues--Appeal from order allowing motion by respondent for order made pursuant to Federal Court Rules, 1998, r. 107, directing either reference or trial of issue to determine nature, quantum of damages appellant should pay as result of interim, interlocutory injunction obtained against respondent--R. 107 permitting Court to at any time order trial of issue be determined separately--Interim injunction issued on November 30, 1993 restraining respondent from selling diclofenac slow-release tablets--Interlocutory injunction issued on August 5, 1994, although limited to 100 mg size--Condition of injunction that appellant would undertake in writing, satisfactory to Court, to pay damages awarded to respondent against appellant at trial--In parallel proceedings, Registrar of Trade-marks granting appellant's application for registration of trade-mark in relation to "Voltaren SR" tablets--Respondent's appeal from that decision allowed on April 14, 2000 on ground appellant not establishing distinctiveness--Order issued dissolving injunction on December 19, 1997--McKay J. stating appellant not meeting its responsibility to proceed with due diligence; indeed, appellant virtually conceding treated interlocutory injunctions as permanent resolution of disputes; lengthy, inordinate delay constituting extraordinary circumstance warranting intervention of Court--Appellant filed notice of discontinuance--11 months later respondent filing motion for order directing reference or trial of issue regarding nature, quantum of damages resulting in order under appeal--Motions Judge concluding appellant not demonstrating special circumstances existed so as to relieve it of its obligation to compensate respondent for damages arising from operation of injunctions--Appellant submitting Motions Judge erred in ignoring respondent's delay in bringing motion, in concluding respondent meeting burden to establish by evidence existence of damages, in fact and law with respect to special circumstances--Appeal dismissed--Test for appellate review of exercise of judicial discretion whether judge at first instance gave sufficient weight to all relevant considerations: Reza v. Canada, [1994] 2 S.C.R. 394--Text of r. 107 permissive--Motions Judge gave sufficient weight to all relevant considerations--Findings of fact amply supported by evidence--Application of legal principles to facts unassailable--Federal Court Rules, 1998, SOR/98-106, r. 107.