This decision concerned the quantification phase following the liability determination, which found Astrazeneca's patent valid and infringed. Apotex sought to further amend its Fresh as Amended Responding Statement of Issues by adding a new non-infringing alternative, even though the trial is currently underway and only the final argument remains outstanding. The Court had previously allowed Apotex the benefit of several amendments to its pleadings including a NIA amendment last July. The proposed amendment was only brought to the attention of the Plaintiffs and the Court shortly before the commencement of trial.
The Court dismissed Apotex's motion to amend with costs payable in the amount of $15,000. The Court found that "[t]he complications arising from Apotex's failure to raise this NIA issue in a timely way are simply too profound to be remedied by monetary relief". The Court set out various considerations that militated against the relief sought, including that: the proposed amendment did not arise from something beyond the control of Apotex or its counsel; AstraZeneca made a profits election, prepared and fully presented its case based on Apotex's current pleadings; the completion of the trial will be delayed by at least several months, creating a large gap in the hearing of evidence; etc.