Alcon Canada Inc. v. Apotex Inc., 2016 FC 898         

The Court dismissed the Plaintiffs’ motion for a bifurcation order requesting that liability issues in this infringement action be tried separately from and before all issues of quantification, as well as all issues from Apotex’s counterclaim for section 8 damages. Unlike infringement cases where there is no section 8 counterclaim, the Court noted that there was no longer a possibility that a judgment on liability would eliminate the need for a second phase of trial altogether in the present case.

Alcon argued that there was a high likelihood that the section 8 claim will be settled, which was a factor in a recent decision to bifurcate a section 8 claim (see Apotex v Alcon, 2016 FC 720). However, the Court distinguished this decision since documentary discoveries had been completed and the parties had been able to put before the Court estimates of the amounts at stake in the section 8 claim, from which the Court could form a view of the probabilities of settlement.

The Court was prepared to accept that if Alcon is unsuccessful on infringement, some of Apotex’s defences would no longer have to be litigated at all. However, in the opposite scenario where Alcon is successful, the Court was not satisfied that the savings that might result would be significant enough to outweigh the inherent wastefulness of the bifurcation. The Court concluded that bifurcation was only likely to lead to appreciable savings of costs or time in the event that Alcon loses in the liability phase. Therefore, Alcon’s motion for bifurcation required the Court to conclude that it was more likely than not that Alcon’s action will fail. The Court noted that the determination of contested motions for bifurcation should not turn on an assessment of the relative merits of the parties’ case or an evaluation of which party is most likely to prevail.