Hospira Healthcare Corp. v. Kennedy Institute of Rheumatology, 2015 FC 1292 (Kane J.)
November 18, 2015
Warren Sprigings of Sprigings Barristers and Solicitors, for Moving Parties, Hospira Healthcare Corporation, Celltrion Healthcare Co. Ltd., and Celltrion Inc. (Appellant)
Andrew Skodyn and Vanessa Park Thompson of Lenczner Slaght Royce Smith Griffin LLP, for Kennedy Institute of Rheumatology and the Kennedy Trust for Rheumatology Research (Respondent Responding Parties)
This is an appeal by Hospira Healthcare Corporation, Celltrion Healthcare Co. Ltd., and Celltrion Inc. (together, “Hospira”) of Prothonotary Milczynski’s Order compelling the respondents Kennedy Institute of Rheumatology and Kennedy Trust for Rheumatology Research (together “Kennedy”) to answer questions asked at examination for discovery. The appeal is in the context of an action to impeach Canadian Patent No. 2,261,630.
The motion before Prothonotary Milczynski was for an order compelling answers to 354 questions refused or taken under advisement. Nineteen of the questions were ordered to be answered by Kennedy. Hospira appealed 85 of the rulings in the Order. The appeal was dismissed with costs. Before beginning the detailed reasons, Kane J. recognized that even after extensive review of the record, she did not grasp the issues to the extent that Prothonotary Milczynski would after two years of managing the case.
Madam Justice Kane applied the Aqua Gem standard of review. With respect to Prothonotary Milczynski’s decision as a whole, Hospira failed to establish either that the questions were vital to the final outcome or that the Prothonotary was clearly wrong.
Madam Justice Kane reviewed particular arguments and found that in no case had Prothonotary Milczynski erred in her application of the law. The particular issues were standing and entitlement to relief, admissibility of examination transcripts of the same individuals from corresponding litigation in the United States and the United Kingdom, anticipation, obviousness, commercial success, claim breadth, a request that Kennedy adopt answer provided by Janssen Biotech, Inc., Janssen Inc., and CILAG Gmbh International (parties to the action but not to the motion appeal), particularization of Kennedy’s pleadings, and a request that Kennedy review its produced documents to identify publication dates and provide other information. Kane J. emphasized that Prothonotary Milczynski applied proportionality correctly and rejected Hospira’s argument that Prothonotary Milczynski overemphasized expediency.
By: David Wood, Borden Ladner Gervais LLP