Appeal of interlocutory motion in impeachment action

Apotex appealed the finding of the Trial Court which allowed Pfizer’s Statement of Defence to include pleadings of issue estoppel, collateral estoppel, comity and abuse of process based on related NOC litigation.

The Court of Appeal reaffirmed that NOC cases are summary in nature and that decisions as to validity or infringement made in an NOC case are not binding in the sense of cause of action estoppel. However, the Court of Appeal noted that depending on the evidence put forward in a subsequent proceeding the doctrines of res judicata and issue estoppel may apply to particular factual and legal findings of the previous application judge’s findings. The Court offered the following illustration as an example: if a witness gives exactly the same evidence in both proceedings, and the judge found the witness to be credible in the NOC proceeding, it may be open to the trial judge in the action to bar re-litigation of the witness’ credibility through issue estoppel or abuse of process; on the other hand, if the witness gives different or additional evidence at the action, the trial judge may be justified in reconsidering the witness’ credibility.

In view of the above, the Court of Appeal found that portions of Pfizer’s statement of Defence which contained general statements with regards to litigation bar should be struck, but that other paragraphs relating to specific findings of the previous judge should be allowed.

A copy of this decision may be found at the following link:

http://decisions.fca-caf.gc.ca/en/2011/2011fca77/2011fca77.html