NYCOMED CANADA INC., NYCOMED GMBH v. NYCOMED INTERNATIONAL MANAGEMENT GMBH, 2012 FCA 195

Source: Federal Court of Appeal

Date: 2012-06-25

Jurisdiction: Federal

Docket: A-480-11

Citation: 2012 FCA 195

Opinion

Federal Court of Appeal Cour d'appel fédérale Date: 20120625 Dockets: A-480-11 A-481-11 Citation: 2012 FCA 195 CORAM: NOËL J.A. EVANS J.A. SHARLOW J.A. A-480-11 BETWEEN: NYCOMED CANADA INC., NYCOMED GMBH and NYCOMED INTERNATIONAL MANAGEMENT GMBH Appellants and TEVA CANADA LIMITED Respondent A-481-11 BETWEEN: NYCOMED CANADA INC Appellant and APOTEX INC. Respondent AND BETWEEN: NYCOMED CANADA INC. and NYCOMED GMBH Appellants and APOTEX INC. Respondent

Heard at Toronto, Ontario , on June 25, 2012. Judgment delivered from the Bench at Toronto, Ontario , on June 25, 2012. REASONS FOR JUDGMENT OF THE COURT BY: NOËL J.A. Federal Court of Appeal Cour d'appel fédérale Date: 20120625 Dockets: A-480-11 A-481-11 Citation: 2012 FCA 195 CORAM: NOËL J.A. EVANS J.A. SHARLOW J.A. A-480-11 BETWEEN: NYCOMED CANADA INC., NYCOMED GMBH and NYCOMED INTERNATIONAL MANAGEMENT GMBH Appellants and TEVA CANADA LIMITED Respondent A-481-11 BETWEEN: NYCOMED CANADA INC Appellant and APOTEX INC. Respondent AND BETWEEN:

NYCOMED CANADA INC. and NYCOMED GMBH Appellants and APOTEX INC. Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto , Ontario, on June 25, 2012) NOËL J.A. [ 1 ] There are two appeals from decisions of Simpson J. of the Federal Court who dismissed the appellants appeals from earlier decisions by Prothonotary Milczynski based on a single set of reasons.

Simpson J. after conducting a de novo review, agreed with Prothonotary Milczynski that the plea of “contributory infringement” in the statements of defence and counterclaim filed by the appellants had to be struck as it was plain and obvious that it would fail. [ 2 ] These reasons dispose of both appeals, the original being filed in Court file A-480-11, and a copy thereof being filed in Court file A-481-11 as reasons for judgment in that matter. [ 3 ] Despite the able submissions by Counsel for the appellants, we can detect no error in the decision reached by Simpson J.

In particular, we adopt the reasoning set out at paragraph 27 of her reasons for holding that the decision of the Supreme Court in Monsanto Canada Inc. v. Schmeiser , 2004 SCC 34 , is not indicative of an intention to depart from the existing precedents and to recognize “contributory infringement” as a cause of action under the Canadian law. [ 4 ] The appeals will be dismissed with costs in each instance. "Marc Noël" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-480-11 (APPEAL FROM AN ORDER OF THE HONOURABLE JUSTICE SIMPSON OF THE FEDERAL COURT DATED DECEMBER 9, 2011, DOCKET NO.

T-368-08) STYLE OF CAUSE: Nycomed Canada Inc. Nycomed GMBH and Nycomed International Management GMBH and Teva Canada Limited

PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: June 25, 2012 REASONS FOR JUDGMENT OF THE COURT BY: ( Noël, Evans & Sharlow JJ.A.) DELIVERED FROM THE BENCH BY: Noël J.A. APPEARANCES : Lindsay Neidrauer Afif Hamid FOR THE APPELLANTS Andrew Skodyn Ben Wallwork FOR THE RESPONDENT SOLICITORS OF RECORD : BELMORE NEIDRAUER LLP Toronto, Ontario FOR THE APPELLANTS HEENAN BLAIKIE LLP Toronto, Ontario FOR THE RESPONDENT FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-481-11 (APPEAL FROM AN ORDER OF THE HONOURABLE JUSTICE SIMPSON OF THE FEDERAL COURT DATED DECEMBER 9, 2011, DOCKET NO.

T-1786-08) STYLE OF CAUSE: Nycomed Canada Inc. and Apotex Inc. AND Nycomed Canada Inc. and Nycomed GMBH and Apotex Inc.

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