Sanofi brought a motion to consolidate three actions pertaining to damages pursuant to section 8 of the NOC Regulations. The actions were brought by Novopharm, Riva and Apotex. Apotex agreed with the consolidation while Novopharm and Riva strongly opposed consolidation. The Court refused to order a joint hearing or a formal consolidation, however, did order that the 3 actions be managed by the same case management prothonotary and heard consecutively by a single judge.

The Court found that each generic claim for damages would have to be evaluated separately. While there may be common evidence relating to the operation of the market for ramipril and while actions of a generic who is not party to one action may impact on the assessment of damages in a different action, these are evidentiary matters that can be dealt with in the context of each action without consolidation.

The Court further found that there would be prejudice to Novopharm and Riva if consolidation occurs. Furthermore, it is Sanofi’s burden to prove that it would suffer prejudice without a consolidation and it did not do so.

Finally, the Court found that the possibility of inconsistent findings in the three cases could be effectively managed by having the cases heard separately but consecutively by one judge, and case managed by the same case management prothonotary or judge. However, as these cases relate to damages, it is likely that issues of admissibility and confidentiality will be complex and the interests of the parties will not always be aligned at each procedural step. Thus, the motion was dismissed.

The full text of the decision can be found at:

http://decisions.fct-cf.gc.ca/en/2009/2009fc1285/2009fc1285.html