AstraZeneca Canada Inc., et al v. Apotex Inc., 2015 FC 671 (Barnes J.)
May 25, 2015
Gunars Gaikis, Nancy Pei and Urszula Wojtyra for AstraZeneca Canada Inc. and Aktiebolaget Hässle
Harry Radomski and Daniel Cappe for Apotex Inc.
The Parties brought a motion under Rule 397 to modify the terms of a previously issued Judgment.
Justice Barnes commented on the limitations of Rule 397 – that it is not a means to reconsider a Judgment on the merits. The Court can only make corrections where the language of the Order fails to conform with the reasons given or to deal with issues that were overlooked or accidently omitted.
Justice Barnes agreed with AstraZeneca that the Judgment should be clarified to remove reference to “Apo-Omeprazole” and to replace it with “its Omeprazole capsule products, including its coated Omeprazole pellets”. The factual basis for the change was that Apo-Omeprazole was a name used by Apotex only in Canada, and Justice Barnes did not intend to limit AstraZeneca’s claims to damages to products distributed solely within Canada, or to products only in capsule form.
The parties agreed that the Judgment was deficient by failing to refer respectively to the right of election, to the dismissal of the claim to punitive damages, and to the claim to interest. Justice Barnes made the additions of the above to the Judgment.
By: Peter W. Choe, Gowling Lafleur Henderson LLP