In a motion regarding the order of the presentation of the evidence on a patent infringement action where the plaintiff is relying on the presumption of infringement under s. 55.1 of the Patent Act, Justice Crampton held that the most just and expeditious determination of the issues would take place if the defendant, Apotex, addressed the issue of whether its supplier(s) used a non-infringing process first through fact and expert evidence, and the plaintiff, BMS, then replied to any evidence adduced.

This order of evidence would be consistent with the spirit of s. 55.1, and would be more logical than to require BMS to lead its evidence on the issue before Apotex. While the Court did not rule on the issue of whether the persuasive burden of proof under s. 55.1 remains with the plaintiff or shifts to the defendant, the Court did note that once s. 55.1 is engaged, the defendant has, at a minimum, the evidentiary burden to prove non-infringement, and that this is a significantly greater burden than simply having to adduce some evidence of non-infringement.

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