[2016] 4 F.C.R. D-14
Practice
Judgments and Orders
Reversal or Variation
Appeal from Federal Court (F.C.) order dismissing motion seeking variation of F.C. judgment in Court file T-2300-05 — Respondent suing appellant in Court file T-2300-05 pursuant to Patented Medicine (Notice of Compliance) Regulations, SOR/93-133, s. 8 for damages arising from its delayed entry into market for generic version of omeprazole (Apo-Omeprazole) — Appellant arguing, inter alia, respondent not entitled to damages because sales of Apo-Omeprazole would infringe appellant’s other patent ('693 patent) — F.C. rejecting appellant’s defence, concluding that court hearing pending infringement action, if concluding that patent valid, infringed by respondent, can craft appropriate remedy — Finding, inter alia, that: respondent entitled to compensation under Regulations, s. 8(1); no basis for exercise of judicial discretion under Regulations, s. 8(5) to reduce or refuse compensation to respondent — Appeal by appellant dismissed in 2013 FC 77 — Court therein rejecting appellant’s argument that F.C. erred in finding pending infringement action irrelevant to claim for damages under s. 8 — Basis for appellant’s motion finding in 2015 FC 322 and 2015 FC 671 that respondent infringing '693 patent — Appellant seeking to add provision that when determining respondent’s entitlement to damages, reference Judge may have regard to judgment in 2015 FC 322, to reverse conclusion no basis for exercise of discretion — F.C. dismissing motion on basis that in original decision F.C. had expressly considered scenario where respondent might later be found to have infringed another patent — Finding of '693 patent infringement in 2015 FC 322 and 2015 FC 671 not arising or discovered after judgment in s. 8 proceeding herein within contemplation of Federal Courts Rules, SOR/98-106, r. 399(2)(a) — Judge also relying on Grenier v. Canada, 2008 FCA 63 to dismiss motion on basis that up to Federal Court of Appeal Court to vary judgment — Motion to vary judgment ought not to have been brought before Court herein — In Grenier, Court not required to consider proper forum in which to bring motion under r. 399 — When Court dismissing an appeal, concluding judgment below not vitiated by error of law or palpable, overriding error of fact or mixed fact, law — This determination qualitatively different decision than decision about whether judgment ought to be set aside or varied because judgment flawed based on matters discovered after judgment made — Supreme Court of Canada in Royal Trust Company v. E.M. Jones, [1962] S.C.R. 132 holding that when judgment affirmed by intermediate court of appeal, any subsequent proceeding to set aside judgment properly brought in trial court — This determination having equal application to motion to vary judgment — Motion for variation properly brought in F.C., motion for variation herein dismissed on that basis — Appeal dismissed.
Astrazeneca Canada Inc. v. Apotex Inc. (A-311-15, A-187-12, 2016 FCA 194, Dawson J.A., judgment dated July 5, 2016, 7 p.)