Apotex Inc. v H. Lundbeck A/S

Drug: escitalopram

The Court recently translated a decision from April regarding a motion to amend a statement of claim and a motion to bifurcate in an impeachment proceeding. The Court granted the motion to amend and denied the motion for bifurcation.

The proposed amendments sought to add a new party (the proposed supplier of Apotex’ active pharmaceutical ingredient) to the claim. The Court held that it is in the interest of justice in ensuring efficient use of judicial resources and avoiding a multiplicity of pleadings and the risk of contradictory judgments that this amendment be permitted. The Court also held that there had been no delay in filing the motion to amend the pleadings; however, even if there had been, there was not any prejudice that could not be compensated in costs. The Court considered some of the procedural choices made by Apotex and held that a party, as sophisticated as Apotex, “must be taken to accept the possible consequences of the procedural choices it makes, and cannot be heard to complain that these consequences are prejudicial to it.”

Regarding the bifurcation motion, Lundbeck undertook to forego its entitlement to damages and claim only Apotex and Pharmachem’s profits, in the event that infringement is found; taking the risk that its entitlement to those profits could be successfully opposed. The Court held that had this concession not been made, there would have been justification for a bifurcation order.