The Court of Appeal reviewed two lower courts decisions (1) granting BMS’s motion to strike certain portions of Apotex’ pleadings regarding validity; and (2) granting Apotex last minute motion for leave to amend its pleadings to add new grounds for its claim that BMS’ patent was invalid. Writing for the Court, Justice Stratas disallowed the amendments and indicated that parties should be clear and candid at all times during litigation about what issues are fully in dispute, but especially at the pre-trial conference. Because Apotex did not indicate that the issues it sought to add to the pleadings were at play in its pre-trial conference memorandum, it subsequent pleadings amendments were denied. In discussing the policy reasoning behind his decision, Justice Stratas wrote:

[34] For roughly an entire decade, Apotex has conducted itself in a way that suggested that the issues of lack of sound prediction and the broad inutility of nefazodone and its salts were not real questions in controversy. If they were real questions in controversy, they would have been addressed meaningfully at least at some time, if not constantly, during this decade-long litigation. Instead, those questions were no part of the discoveries or the pre-trial memoranda. Now, only at this late date – years after the exchange of pre-trial memoranda – and without any significantly new developments in the litigation, Apotex seeks a further and better affidavit of documents from Bristol-Myers and embarks upon what the Prothonotary called a “fishing expedition” concerning “the length and breadth of the development of nefazodone.” Finally, as the Prothonotary also found, even now on the eve of trial Apotex cannot articulate these supposedly “real questions in controversy” with acceptable particularity.

***

[37] Complex, high-stakes intellectual property proceedings are governed by procedural rules aimed at fairness, full and timely disclosure, and efficiency. Purposeful, strategic conduct involving non-disclosure, non-clarification or inaction, as the Prothonotary and the Federal Court judge found here, disrespects these rules and their aims. Those who disrespect the rules and their aims can hardly expect courts to smile upon them when they look for a favourable exercise of discretion under those rules. (emphasis added)

A copy of this decision may be found at the following link:

http://decisions.fca-caf.gc.ca/en/2011/2011fca34/2011fca34.html