The Defendants appealed an order of the Court denying leave to amend their Statements of Defence. The trial as to infringement and validity has concluded, and the trial to determine damages is scheduled for April 2013. The amendments concerned the issues for the damages trial. The appeal was granted.
The proposed amendments allege that as a non-infringing process was available, no damages were suffered by the Plaintiffs. The Court held that there was little Canadian case law specifically rejecting this sort of pleading. The Court held that the Defendants were advancing an arguable and important point of law, and thus, its merits should be determined by the trial judge, despite formidable obstacles to success.