2016 FC, 2016 FC 1055

Date: 20160919 Docket: T-1885-14 Citation: 2016 FC 1055 Ottawa, Ontario, September 19, 2016 PRESENT: Madam Prothonotary Mireille Tabib BETWEEN: ALCON CANADA INC., ALCON LABORATORIES, INC., ALCON PHARMACEUTICALS LTD., AND ALCON RESEARCH, LTD. Plaintiffs and APOTEX INC. Defendants AND BETWEEN: APOTEX INC. Plaintiff By Counterclaim and ALCON RESEARCH, LTD. Defendant By Counterclaim ORDER AND REASONS [ 1 ] The liability phase of this infringement action is scheduled to proceed to trial on November 27, 2017.

Quantification issues have been bifurcated and will proceed in a second phase if the Court determines, after the first phase trial, that Alcon’s ‘370 Patent is valid and infringed by Apotex’s Apo-Travoprost Z ophthalmic pharmaceutical solution. [ 2 ] Apotex now moves for leave to amend its statement of defence and counterclaim to add a new ground of invalidity by anticipation, a defence of ex turpi causa based on anti-competitive conduct, and two new defences based on the concepts of issue estoppel, abuse of process and the doctrine of election, arising from the prior prohibition proceedings commenced by Alcon in relation to the same patent and product. [ 3 ] At the hearing, because the parties agreed that the ex turpi causa defence relates solely to the quantification of damages, the parties consented to an order dismissing Apotex’s motion in respect of the amendments raising that defence, without prejudice to Apotex’s right to seek leave to make the same amendments at the beginning of the second phase of the action, if any, and on the understanding that Alcon would not be able to use the delay between now and then as a further defence to the motion. [ 4 ] The motion therefore proceeded only in respect of proposed new paragraphs 98 to 104 (the anticipation defence), paragraphs 53 to 55 (the issue estoppel, abuse of process defence) and paragraphs 30 to 41 (the election defence).

I. Context and Chronology [ 5 ] In 2014, Apotex wished to come to market with a generic version of Alcon’s Travatan Z ophthalmic solution. It served on Alcon a notice of allegation in accordance with the Patented Medecine (Notice of Compliance) Regulations SOR/93-133 , as amended (the “PM (NOC) Regulations” ), alleging that the ‘370 Patent, covering the formulation for Travatan Z, was invalid. The prohibition application commenced by Alcon in response was dismissed in the summer of 2014; Apotex obtained its NOC and started offering Apo- Travoprost Z for sale in August 2014.

Almost immediately thereafter, Alcon launched this infringement action against Apotex and Apotex sued Alcon in a separate action (T-1844-14) for damages for having been kept off the market, pursuant to

section 8 of the PM (NOC) Regulations . [ 6 ] Although the two actions have proceeded at different paces, Apotex has repeatedly but unsuccessfully asked for the two actions to be consolidated and heard together. Alcon construes the present motion to amend as yet another salvo in this continuing battle, aimed at delaying the trial of this action so that Apotex’s

section 8 action can “catch-up” and be heard at the same time (see, for further context, Apotex v Alcon Canada Inc. , 2016 FC 720 , a decision issued in that related

section 8 action on Apotex’s motion to bifurcate). Apotex denies the motives ascribed to it by Alcon. [ 7 ] Although the motion to amend was only filed at the end of July 2016, after the trial date was fixed, Apotex had announced its intention to move to amend as early as mid-May 2016. [ 8 ] Discoveries were conducted in early March 2016. Alcon first requested that a trial date be fixed in this matter at the end of March 2016.

During the course of a case conference in April 2016, the Court asked the parties and counsel to refrain from taking new commitments in September and December 2017 to allow for the potential trial of this matter. It is after that, in mid-May 2016, that Apotex first submitted to Alcon a draft of its proposed amendments. Alcon withheld its consent to the amendments. [ 9 ] Motions to compel were heard and the trial date was formally fixed in June 2016. Given Alcon’s refusal to consent to Apotex’s proposed amendments, the Court also fixed a

schedule for briefing and hearing this motion to amend.

II. Applicable Law [ 10 ] Amendments should be permitted where the interests of justice would be served and where they would not cause an injustice to the other party that cannot be compensated in costs. There is no fundamental disagreement between the parties as to the factors that the Court must consider in determining whether the interests of justice would be served by allowing amendments.

These factors include: The timeliness of the motion to amend, the extent to which the proposed amendments would delay the expeditious trial of the matter, the extent to which a position taken originally by a party has led the other to follow a course of action which it would be difficult or impossible to alter and whether the amendments will facilitate the Court’s consideration of the true substance of the dispute on its merits ( Teva Canada Ltd v Gilead Sciences Inc , 2016 FCA 176 , Sanofi-Aventis v Teva Canada Ltd , 2014 FCA 65 , Merck and Co Inc v Apotex Inc , 2003 FCA 488 ). [ 11 ] It is also beyond dispute that amendments that fail to disclose a reasonable cause of action or defence or could be struck pursuant to Rule 221 should not be permitted. [ 12 ] Where the parties diverge is the extent to which, in considering the merits of proposed amendments, the Court should apply the same stringent criteria applicable to motions to strike, whereby proposed allegations of fact must be accepted as proven and novel arguments of law must be allowed to proceed to determination by a trial judge unless they are certain to fail, or whether the Court may take a “realistic view” of the law and the litigation process, to determine whether proposed amendments have a “reasonable chance of success” .

Alcon suggests that there is a difference between the two standards, the latter being less stringent than the former. [ 13 ] I am satisfied that this motion may be determined without having to resolve this issue.

For the reasons below, I am satisfied that, even using the “realistic view” standard advanced by Alcon, the new anticipation defence presents a reasonable prospect of success, and that parts of the proposed defence of issue estoppel and abuse of process and the entirety of the defence of election fail to disclose a reasonable defence, even using the stringent standards applicable to Rule 221 motions to strike. III.

The Anticipation Defence [ 14 ] Apotex’s proposed amendments plead that details of the Travatan Z formulation, including a list of 15 specific details that match the claims of the patent, were disclosed to the public by employees and representatives of Alcon Research and others during, or in association with, the annual meeting of the Association for Research in Vision and Ophthalmology (“ARVO”) in May 2006, and in an abstract presented and published at the ARVO meeting; the amendments also allege that these disclosures were reported in certain specifically identified scientific press articles. [ 15 ] Alcon argues that these allegations have no reasonable prospect of success because, as a matter of fact, one of the essential elements of the claims, being a limitation on the concentration of anionic species, was not even known or discovered by the inventors until after the ARVO meeting of 2006, and because none of the documents pleaded, on their face, even mention anionic species, let alone their concentration in the composition. [ 16 ] Assuming, without determining, that the Court may look at evidence for the purpose of evaluating whether the proposed amendments have a reasonable prospect of success, that evidence should have at least a modicum of robustness and reliability.

Motions to amend should not be defeated on the basis of incomplete or inconclusive evidence, as it would require the amending party to respond by attacking the credibility of its opponent’s evidence or adducing evidence of its own to establish its claim, turning motions to amend into motions for

summary judgment. [ 17 ] The only evidence adduced by Alcon on this motion consists of one answer it has given to an undertaking on discovery, giving a date on which the inventors “determined” the limits on the concentration of anionic species. This evidence is unsworn and untested.

Even if believed, evidence of when the inventors “determined” the relevant limits would not by itself negate the possibility that other employees or representatives of Alcon, or others having had access to Alcon’s information might, as alleged in the proposed amendments, have independently made statements as to the appropriate concentrations.

Alcon’s bare reliance on the absence of the specific words “anionic species” in the documents mentioned in the amendments is equally insufficient, given that these are complex scientific documents. [ 18 ] I do not accept Alcon’s objection that reference in the proposed amendments to “others who directly or indirectly obtained information from Alcon research” is too vague, a fishing expedition or irrelevant.

The expression is not used to investigate what information was obtained by others prior to the alleged public disclosure, but to describe and identify those who allegedly made the disclosure at the ARVO meeting. [ 19 ] I am accordingly satisfied that the proposed amendments are sufficiently particularized and have a reasonable prospect of success.

I note that while Apotex has not shown why it could not have included these allegations in its defence and counterclaim at the outset of this action, it has raised the issue as part of its examination for discovery of Alcon and asked a series of questions on the ARVO meeting. These questions were ruled irrelevant in the absence of specific pleadings, but, if the amendments are now permitted, discovery can proceed expeditiously, the bulk of the questions having already been formulated. I am satisfied that the delay in raising this defence is not prejudicial and will not disrupt or delay the trial.

I am also satisfied that the proposed amendments go directly to an issue in controversy between the parties. Leave to make these amendments should accordingly be granted. IV. The Defence of Estoppel and Abuse of Process [ 20 ] The impugned paragraphs read as follows:

53. In Federal Court File No. T-1667-12, Justice Kane found that: (

a) Systane Free was “very relevant prior art” to the 370 patent; (b) “the components of the preservation system in Systane Free are the same as the preservation system in Claim 13” of the 370 patent; (c) “Systane Free cannot be characterised as a different system” than that of the 370 patent; (d) “Systane Free taught the combined use of zinc chloride, boric acid and propylene glycol and sorbitol”; and (

e) Any differences between the preservative system in Systane Free and that described in the 370 patent would have been “more or less self-evident” to a skilled person. 54. Given that the prohibition application in Federal Court File No.

T-1667-12 involve the same parties (or their privies) as this action, determined that the purported invention of the 370 patent is obvious in view of Systane Free and resulted in a final decision ( 2014 FC 791 ), by reason of issue estoppel and abuse of process, the Plaintiffs are precluded from contesting or making any allegations inconsistent with the findings of fact that were fully litigated and finally decided in Federal Court File No. T-1667-12, including those set out at paragraph 53 of this Statement of Defence, as they are binding in respect of the present action. 55.

By reason of cause of action estoppel, the Plaintiffs are also precluded from contesting or making any allegations inconsistent with Justice Kane’s finding in Federal Court File No. T-1667-12 that the 370 patent is invalid on the basis of obviousness. [ 21 ] These allegations could have been included in Apotex’s original defence. However, because they rest on the record constituted in the prohibition proceeding and do not require discovery, the delay in raising them cannot be prejudicial.

To the extent they raise an arguable defence, they should be permitted. [ 22 ] The Federal Court of Appeal, after conducting a thorough review of the jurisprudence, ruled in Apotex v Pfizer Ireland Pharmaceuticals , 2011 FCA 77 ( Sildenafil 2011) that issue estoppel or abuse of process could apply to prevent a party from re-litigating or re-arguing, in an action, the conclusions of fact reached in a prior NOC proceedings “on the same evidence, with the same arguments” as were adduced in the prohibition proceedings.

The Federal Court of Appeal, however, explicitly reaffirmed the existing and consistently upheld principles that res judicata , “in the sense of cause of action estoppel, the doctrine that a party cannot relitigate a cause of action that has already been dealt with” , does not apply between an NOC proceeding and a subsequent action (at paragraph 18), and that the defences of issue estoppel, abuse of process and others “cannot apply in respect of the question of a patent’s validity” (at paragraph 19).

To the extent issue estoppel or abuse of process can apply, it is only in respect of certain factual and legal issues, and then only in the absence of a different evidentiary record or significant new argumentation. [ 23 ] The reasoning of the Court of Appeal in Sildenafil 2011 expressly recognizes and affirms the ability of a party to introduce new evidence or to raise new argument in a subsequent action to argue for a different conclusion than was reached in the earlier NOC proceeding, and in fact mandates the trial judge in such circumstances to reconsider the issue in light of the full record before him or her (paragraph 25). [ 24 ] What paragraph 55 of the proposed amendments pleads is that “by reason of cause of action estoppel” Alcon is precluded from “contesting or making any allegation inconsistent with” Justice Kane’s findings “that the patent is invalid on the basis of obviousness” .

This paragraph offends the Federal Court of Appeal’s express ruling that cause of action estoppel in respect of the validity of a patent does not disclose a reasonable defence and as a result, I am satisfied that it should not be allowed. [ 25 ] The proposed paragraph 54, for its part, pleads that Alcon is “precluded from contesting or making any allegations inconsistent with” Justice Kane’s findings of fact “as they are binding in the present action” .

As drafted, this paragraph could be read as suggesting that Alcon is precluded from introducing new evidence or new argument in support of a different result, rather than simply precluded from re-litigating the factual findings enumerated in paragraph 53 “on the same evidence and with the same arguments” .

Such an allegation would go directly against the principles reaffirmed by the Court of Appeal in Sildenafil 2011, to the effect that findings in prior NOC proceedings are not binding in subsequent actions, but that as a matter of discretion, and based on the evidence adduced before him or her, the judge hearing the subsequent action could apply the doctrines of issue estoppel and abuse of process to bar re- litigation (see for examples of application: Janssen Ortho Inc v Novopharm Ltd. 2006 FC 1234 , Astrazeneca Canada Inc v Apotex Inc 2014 FC 638 , aff’d 2015 FCA 158 and Apotex Inc v Pfizer Ireland , 2014 FCA 13 at paragraph 25 ). [ 26 ] Apotex has however put before the Court as evidence on this motion the specific pleadings that were under consideration and were allowed to stand by the Federal Court of Appeal in Sildenafil 2011.

These pleadings are drafted in the following form: “In [the prior NOC proceeding] it was found that [a certain issue of fact or law]. This finding is binding in this action. Apotex is precluded from re-litigating [this issue] due to issue estoppel, collateral estoppel, comity and abuse of process”. [ 27 ] To the extent the form of the proposed amendments here is not materially different from the amendments permitted in Sildenafil 2011, I am bound to read and interpret them in a manner consistent with the ruling in Sildenafil , and conclude that they disclose a reasonable defence.

The plea that a party is precluded from “contesting” prior factual findings “as they are binding in this action” is not materially different from the plea that a prior finding is binding and the party is precluded from “re-litigating” the issue. However, the plea that a party is precluded from “making any allegation inconsistent with” a prior finding cannot be given any meaning other than to preclude a party from leading evidence different from that led in the prior proceeding and cannot disclose an arguable defence.

These words will accordingly be struck from proposed paragraph 54. [ 28 ] I should add that Apotex’s reliance on the case of Apotex Inc. v Pfizer Ireland , 2012 FC 1339 , affirmed at 2014 FCA 13, is misplaced. The Federal Court in that case dismissed an infringement action on

summary judgment because it found it was bound by the Supreme Court of Canada’s determination, in a prior prohibition proceeding, that the same patent was void for insufficiency of

disclosure. However, the Federal Court’s dismissal was based on its conclusion that the issues on which the Supreme Court ruled wereissues of law, not issues of fact. Here, the proposed amendments clearly relate to the factual findings of Justice Kane and not to anydetermination of law. In any event, on appeal from the Federal Court’s decision, the Federal Court of Appeal in Apotex v Pfizer Ireland,2014 FCA 13 pointed out at paragraph 25 that to avoid

summary judgement, “Pfizer should have adduced or referred to evidence thataddresses how the skilled reader would construe the specification, and why that construction casts doubt on the correctness of theconstruction adopted in Teva 2012”. This reinforces the conclusion that, even on issues of law informed by evidence, it remains open to aparty in an infringement action to adduce new or different evidence to reach different results. V. The Defence of Election [29] The proposed amendments set out a two-pronged argument.

First, Apotex alleges and argues that by commencing aprohibition application in response to Apotex’s Notice of Allegation, Alcon elected to take the benefit of the 24 month stay under the PM(NOC) Regulations, and thereby accepted the consequences and waived the right to assert the ‘370 Patent in a subsequent infringementaction. Based on the doctrines of election, waiver, approbation and reprobation and abuse of process, Alcon is therefore precluded frompursuing the infringement action and disentitled from any relief.

Second, Apotex alleges and argues that in the prohibition proceedings,Alcon “elected” to instruct its only expert witness not to consider Systane Free as forming part of the prior art in forming its opinion onobviousness.

Given that election and Justice Kane’s findings that Systane Free did form part of the prior art, the proposed amendmentsallege that Alcon is either “barred from” commencing this patent infringement action, from asserting that the ‘370 Patent is not invalidand from seeking any relief against Apotex, or “barred from” asserting that Systane Free did not form part of the prior art, frominstructing its expert in a different manner and from leading the expert evidence it ought to have led in the prohibition application.Apotex further alleges that, in launching Apo-Travoprost Z, it relied on Alcon’s prohibition proceedings strategy and on its outcome; as aresult, it argues that Alcon is estopped from bringing an infringement action or seeking damages against Apotex. [30] The essence of the defence framed by these amendments is that Apotex is precluded from instituting or succeeding aninfringement action either solely by reason of the prior prohibition proceeding, or in conjunction with the “special circumstances” arisingfrom the evidence it led in the course of the prohibition proceeding and Apotex’s reliance on it, or, alternatively, that thesecircumstances preclude Alcon from leading different evidence in the action than it led in the application. [31] As mentioned above, the Federal Court of Appeal in Sildenafil 2011 conducted a thorough review of the jurisprudence toconclude unequivocally that the following principles, set out in Pharmacia Inc v Canada (Minister of National Health & Welfare)(1994), (FCA), 58 C.P.R. (3d) 209 (Fed.

C.A.) and reiterated in Apotex Inc v Syntex Pharmaceuticals InternationalLtd (FC), [1999] F.C.J. No. 548, 166 F.T.R. 161, 1 C.P.R. (4th) 22 remained applicable: ...If the Governor in Council had intended by these regulations to provide for a final determination of the issues of validity orinfringement, a determination which would be binding on all private parties and preclude future litigation of the same issues, it surelywould have said so. This court is not prepared to accept that patentees and generic companies alike have been forced to make the soleassertion of their private rights through the

summary procedure of a judicial review application. As the regulations direct that such issuesas may be adjudicated at this time must be addressed through such a process, this is a fairly clear indication that these issues must be of alimited or preliminary nature.

If a full trial of validity or infringement issues is required this can be obtained in the usual way bycommencing an action. [emphasis added] [32] The Federal Court of Appeal concluded its analysis by reiterating that: “For the same reasons, issue estoppel, abuse of processand the other defences pleaded by Merck also cannot apply to the question of a patent’s validity”.

As further discussed above, the Courtof Appeal’s analysis in Sildenafil 2011 expressly contemplates the right for a party to a prohibition proceeding to bring, in a subsequentinfringement action, significant and important new evidence and argument. [33] The proposed amendments plainly and obviously cannot succeed, as they seek a result which is contrary to the specific andestablished law developed and applied the context of materially similar facts.

These principles have been reiterated and applied to permitnew evidence to be raised and to reach different conclusions in infringement actions brought subsequent to prohibition proceedings(Janssen Ortho Inc v Novopharm Ltd. above and Astrazeneca Canada Inc v Apotex Inc, above). [34] Apotex relies on the cases of Hunt v Carey Canada Inc (SCC), [1990] 2 SCR 959, Fullowka v Whitford (1996) (NWT CA), 147 DLR (4th) 531 and R v Imperial Tobacco Canada Ltd 2011 SCC 42, to argue that it israising a novel defence, that a motion to strike is not the appropriate time to decide important or serious questions of law, and that evenauthority binding on a motions judge is not sufficient ground to strike a pleading if an appeal to a higher court might produce a differentview of the law. [35] A defence that has previously been considered and rejected does not become a “novel” defence or an argument, worthy ofproceeding to a trial, simply because it is clothed in the vocabulary of other common law or equitable doctrines.

Where the legal effectsof certain factual circumstances have been extensively and repeatedly analyzed in a variety of different situations, that coherent principleshave been developed to address them and that these principles have been applied consistently, it can be said that the law is settled.

Aparty who wishes to challenge settled or established law must do more than invoke common law or equitable doctrines as if they wereincantations whose mysteries can only be fathomed after a full trial. [36] The Federal Court in Merck and Co Inc v Apotex Inc 2012 FC 454 examined a number of factors in determining whether adefence that had previously been held unavailable at law should nevertheless be allowed to stand.

These factors include: that the pleahad found persuasive support in US jurisprudence, that the original English decision was 125 years old and had only been applied twicein Canada, in both cases after a full trial rather than on motions to strike, that a subsequent decision of the Supreme Court of Canadasignaled a change in the law of damages, and that the argument in support of the plea was cogent and compelling (see paragraph 24). InGaland Estate v Stewart 1992 ABCA 334 at paragraph 35, the Alberta Court of Appeal recognized that a claim should not be struck out

if the trend of recent decisions suggests that the law is moving toward supporting such a claim, but cautioned that did not mean a pleachallenging existing law should be permitted “simply because in the 25th Century Buck Rogers will be able to do anything he wants” butin case of “foreseeable sorts of trends in the law.” [37] Apotex has not brought to my attention any Canadian or foreign jurisprudence providing persuasive support for its argument.The case law on which the countervailing established law is based is recent, authoritative, abundant and consistent.

There is no trend ofrecent decisions that would support its plea. More importantly, Apotex has not presented an argument in support of the plea that iscogent or compelling, on the contrary. [38] The doctrine of election, or of approbation or reprobation, whether at common law or in equity, is fundamentally premised ona person exercising or accepting inconsistent or irreconcilable rights or recourses. As explained in Charter Building Co v 1540957Ontario Inc, 2011 ONCA 487 at paragraph 22, the only difference between the doctrine at common law and the doctrine in equity is theelement of choice.

The commonality between the two remains the existence of an inconsistency between two irreconcilable decisions orsituations: 22 As can be seen, there is a fundamental difference between the two doctrines. The equitable doctrine of election does not involvechoice between alternatives. To establish an election in equity, it is unnecessary to show that the electing party made a conscious choicebetween inconsistent rights at the time when the original decision was made. In fact, an equitable election does not involve making achoice at all — it involves accepting the consequences of a decision already made.

On the other hand, the common law doctrine is allabout choice. It applies to prevent a person who has made a decision from resorting to an inconsistent course of action that he hasspecifically rejected. [39] The jurisprudential conclusion that res judicata, issue estoppel and abuse of process do not prevent a party to a prohibitionproceeding from subsequently bringing an infringement action or from introducing new or different evidence or arguments in asubsequent action precludes any argument that there can be inconsistency in exercising the two recourses or in a party’s choice ofevidence.

Indeed, appeals from prohibition proceedings are commonly dismissed as moot when NOCs have already been issued, on thebasis that an unsuccessful innovator has an appropriate recourse in an infringement action (Janssen v Teva 2015 FCA 36, citing AbbottLaboratories v Apotex 2007 FCA 368, Pfizer v Apotex (FCA), 2001 11 CPR (4th) 245 and Eli Lilly v Novopharm2007 FCA 359). [40] Similarly, the doctrine of waiver cannot conceivably apply to a party’s decision to bring one form of proceeding, given thejurisprudential determination that both forms of proceeding can be pursued. [41] Apotex argues that the pleaded factual situation, where Alcon instructed its only expert witness not to consider what the Courtfound to be very relevant prior art in providing his opinion on obviousness, is a “unique factual context” that justifies its novel butreasonable defence being allowed to proceed to trial.

Apotex however fails to provide a cogent rationale for its argument that the factualcontext pleaded would support the application of the doctrines of election, waiver, estoppel or abuse of process or a different applicationof established concepts. The factual context pleaded in the amendments, even if taken as proven, is no more than a decision by Alcon asto the evidence it chose to lead in the prohibition proceeding.

There is nothing unique in it, and certainly nothing that could conceivablybe construed as inconsistent with Alcon’s recognized right to bring forth a better evidentiary record in a subsequent action. [42] Apotex has cited Apotex Inc v Pfizer Canada Inc 2014 FCA 250 in support of its argument that the Court has recognized thatthere may be instances where a concession made or position taken in one proceeding may be construed as binding upon the concedingparty in another proceeding. The facts pleaded here concern solely the evidentiary decisions made by Alcon in the prohibitionproceedings.

Such decisions, even as pleaded, do not begin to rise to the level of an inconsistent or irreconcilable concession or position.They are on the contrary, entirely consistent with the Courts’ jurisprudence to the effect that it is permissible to introduce in an action abetter evidentiary record than on a prior prohibition proceeding between the same parties. [43] The additional allegation that Apotex relied on the strategy adopted by Alcon in the prohibition proceeding when deciding tolaunch its product adds nothing to the analysis.

Even if proven, a person’s unilateral reliance on another person’s exercise of a right thatis not inconsistent with another cannot form the basis of a defence in election, waiver or estoppel. [44] Apotex’s proposed paragraphs 30 to 41 fail to disclose an arguable defence and leave to add them must be denied. ORDER THIS COURT ORDERS that: 1.

Apotex’s motion to amend its Statement of Defence in respect of proposed paragraphs 12 to 29 and 42 to 52 is dismissed onconsent and without prejudice to Apotex’s right to renew its motion in the course of the second phase of the action, if any; the delaybetween July 2016 and the start of the second phase may not be raised by Alcon as a further defence to such a motion. 2. Apotex has leave to amend its Statement of Defence to add the following proposed paragraphs: 53, 54, with the exception ofthe words “or making any allegations inconsistent with”, and 98 to 104 and to add Documents 77 to 80 in

Schedule “A” thereto. 3. Apotex’s motion is otherwise dismissed. 4. Costs, in the amount of $2,500 shall be payable by Apotex to Alcon. "Mireille Tabib" Prothonotary

FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1885-14 STYLE OF CAUSE: ALCON CANADA INC. ET AL v APOTEX INC. PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: August 17, 2016 ORDER AND REASONS: TABIB P. DATED: September 19, 2016 APPEARANCES : Mr. John Norman For The Plaintiffs Mr. Jordan D. Scopa For The Defendant SOLICITORS OF RECORD : Gowling WLG (Canada) LLP Barristers and Solicitors Ottawa, Ontario For The Plaintiffs Goodmans LLP Barristers and Solicitors Toronto, Ontario For The Defendant