Date: 20031107
Docket: T-1321-97
Citation: 2003 FC 1315
BETWEEN:
ELI LILLY AND COMPANY
and ELI LILLY CANADA INC.
Plaintiffs
- and -
APOTEX INC.
Defendant
AND BETWEEN:
APOTEX INC.
Plaintiff by Counterclaim
(Defendant)
- and -
ELI LILLY AND COMPANY
and ELI LILLY CANADA INC.
Defendants by Counterclaim
(Plaintiffs)
- and -
SHIONOGI & CO. LTD.
Defendant by Counterclaim
REASONS FOR ORDER
PINARD J.:
[1] This is an appeal by the plaintiffs of a discretionary decision not to allow an amendment to their Statement of Claim, a comprehensive decision which was made by Madam Prothonotary Aronovitch in the exercise of her powers as the Case Management Prothonotary assigned to these proceedings.
[2] Upon hearing counsel for the parties and upon reading the material filed, I am not prepared to conduct a de novo review of the merits of the impugned decision and to consider exercising my own discretion differently for the following reasons:
1. the plaintiffs have failed to demonstrate that the Prothonotary's decision is "clearly wrong", in that it was based upon an incorrect principle of law or misapprehension of the facts, or that the question raised is vital to the "final issue" in the case (see Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 at 454 (C.A.)); furthermore,
2. the plaintiffs have manifestly failed to meet the heavy burden of demonstrating that the Prothonotary's interlocutory decision represents the "clearest case of a misuse of judicial discretion" (see Sawridge Band v. Canada, [2002] 2 F.C. 346 at 354 (C.A.)).
[3] Consequently, the appeal is dismissed, with costs.
JUDGE
OTTAWA, ONTARIO
November 7, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1321-97
STYLE OF CAUSE: ELI LILLY AND COMPANY et al. v. APOTEX INC. et al.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: November 4, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: November 7, 2003
APPEARANCES:
Mr. Patrick Smith FOR THE PLAINTIFFS
Mr. David Scrimger FOR THE DEFENDANT
SOLICITORS OF RECORD:
Gowling Lafleur Henderson LLP FOR THE PLAINTIFFS
Ottawa, Ontario
Goodmans FOR THE DEFENDANT
Toronto, Ontario