Digests

Pharmaceutical Partners of Canada Inc. v. Faulding (Canada) Inc.

T-797-02

2002 FCT 1010, Layden-Stevenson J.

26/9/02

9 pp.

Appeal from Prothonotary's order declining to strike patent infringement action or to order particularization of statement of claim--Plaintiff's claim relying on Patent Act, s. 55.1 presumption of infringement--Alleging defendant manu-facturing and selling product infringing patent--Defendant bringing several motions demanding particulars--Plaintiff ordered to provide particulars--Defendant bringing motion to strike out claim on basis particulars provided not fulfilling dual requirements for pleading cause of action in patent infringement or for order for full and complete particulars-- Prothonotary dismissing defendant's motion--Defendant arguing Prothonotary erring in law by (1) ignoring case law for pleading cause of action by considering if defendant had sufficient information to prepare defence rather than if plaintiff properly pleaded case; (2) failing to address requirements of pleading--Parties agreeing law regarding review, by judge, of Prothonotary's discretionary decision set out in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.)--Parties agreeing basic requirements for pleading cause of action in patent infringement set out in Dow Chemical Co. v. Kayson Plastics & Chemicals Ltd., [1967] 1 Ex. C.R. 71--No reasons given by Prothonotary; test in Aqua Gem, supra, still applying--However, established test for striking pleading found in Hunt v. Carey Canada Inc. [1990] 2 S.C.R. 959--Pleading should not be struck out so long as cause of action can be gleaned from claim--Heavy onus on party moving to strike and must be beyond doubt case cannot possibly succeed at trial--Although elements missing and incomplete, if pleading contains enough information allowing opposition to know with some certainty case to be met, pleading not struck--Defendant's willingness to allow plaintiff to amend to achieve more particular pleading not sufficient to displace test in Hunt, supra--Court bound by authorities--Court nonetheless encouraging precise, meticulous pleading--Prothonotary not erring in finding defendant had sufficient information to plead over and that amended claim providing enough information to allow defendant to know, with some certainty, case to be met-- Prothonotary applying proper test for providing particulars-- Appeal dismissed without costs--Patent Act, R.S.C., 1985, c. P-4, s. 55.1 (as enacted by S.C. 1993, c. 2, s. 4; c. 44, s. 193).