Appeal of a motion to set aside decisions on the merits of 55.2 proceedings; 2008 FCA 416; Omperazole; December 22, 2008

The Court of Appeal upheld the decision of the trial judge refusing to set aside decisions in two previous cases.

Apotex was unsuccessful in two previous cases relating to omeprazole but was successful in a third. Apotex filed the motions that were the subject of this appeal, seeking to set aside the decisions in the first two cases. The basis for these motions was an allegation that Apotex' tablets had not changed between the three proceedings and given the conclusion of the judge in the third proceeding, the first proceeding should have been decided in a different manner.

The Court of Appeal found that the Trial Judge had declined to exercise discretion to set aside the two previous orders on the basis that Apotex was attempting to reverse the effects of its unsuccessful litigation strategies by arguing that the cases might have been decided differently if Apotex had conducted itself differently. The Court of Appeal found no error in this decision and dismissed Apotex' appeals.

The full text of the decision can be found at:

http://decisions.fca-caf.gc.ca/en/2008/2008fca416/2008fca416.html