Date: 19981109
Docket: T-2520-93
BETWEEN:
RICHTER GEDEON VEGYÉSZETI GYAR RT
Plaintiff
- and -
APOTEX INC.
Defendant
REASONS FOR ORDER AND ORDER
GILES, A.S.P.
1 It is patent that for some four years after the close of pleadings no progress was made on this matter. A notice of status review was sent to the plaintiff requiring it to show cause why the action should not be dismissed for delay. I note that there is also a counter-claim which has also not been prosecuted, but no notice of status review has been sent with respect to the counter-claim.
2 I note the patents at issue here were dated in 1989 and 1990, and that the first infringement is alleged in 1989. The plaintiff has responded to the notice stating that nothing was done on this file while another was being prosecuted. The other file, involving a different defendant, was settled last year and before the notice of status review was sent, the plaintiff had been attempting to continue with this action and had been seeking to establish a time-table for further steps. However, it is not alleged that it had taken any further step, which of course it was free to do.
3 The respondent, in my view correctly, states that at this stage the onus is on the plaintiff to show why the proceedings should not be dismissed. The respondent takes the view that the plaintiff should, in effect, be required to show that facts do not exist which would enable a defendant to succeed in a traditional motion to dismiss for want of prosecution. The plaintiff apparently sees it as sufficient to indicate that he did not wish to abandon the case, that he had some reason for delay, and that he is willing to go ahead under supervision.
4 I note that rule 380 contemplates that a notice of status review may be sent if pleadings are not closed in 6 months, or 360 days from the issue of a statement of claim, if no party has filed a requisition for pre-trial conference. Form 381, to be used in such cases, contemplates invariably requiring one of the parties to "show cause". I cannot think that after such a short delay in a proceeding in which evidence is not contemplated, a plaintiff would be obliged to show, without filing evidence, that the defendant was not disadvantaged before being allowed to proceed. A seriously disadvantaged defendant can always move under rule 167 and bring evidence to show how it has been disadvantaged. The status review notice in this case followed, but not immediately, a four year period of dormancy. The same rule applies to both delays.
5 I think what is required is that the plaintiff show that there is some reason for delay, and that it is ready and willing to proceed. That is not to say, that a delay when the new rules were in force, would be excused by merely showing a willingness to go ahead case managed. In this case, of course, the principal delay was before the new rules came into effect. The plaintiff has indicated a reason for the four year delay, and had indicated a willingness to proceed at least in a leisurely manner. The plaintiff has now indicated willingness to proceed under the new rules, case managed.
6 I am satisfied that this proceeding should continue.
ORDER
Being satisfied that this proceeding should continue,
IT IS ORDERED THAT:
1.This proceeding continue as a specially managed case;
2.Within 14 days of this order the solicitors of the parties shall meet as contemplated under rule 257 to attempt to limit the issues; and
3.That both parties shall, within 30 days thereafter, serve affidavits of documents.
"Peter A.K. Giles"
A.S.P.
TORONTO, ONTARIO
November 9, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-2520-93
STYLE OF CAUSE: RICHTER GEDEON VEGYÉSZETI GYAR RT
- and -
APOTEX INC.
CONSIDERED AT TORONTO, ONTARIO UNDER THE PROVISION OF RULE 369.
REASONS FOR ORDER AND
ORDER BY: GILES, A.S.P.
DATED: MONDAY, NOVEMBER 9, 1998
SOLICITORS OF RECORD:
Avisar, Hunt & Yan Barristers & Solicitors
750 - 130 Slater Street
Ottawa, Ontario K1P 6E2
For the Plaintiff
Goodman Phillips & Vineberg Barristers & Solicitors
250 Yonge Street, Suite 2400
Toronto, Ontario
M5B 2M6
For the Defendant
FEDERAL COURT OF CANADA
Date: 19981109
Docket: T-2520-93
Between:
RICHTER GEDEON VEGYÉSZETI GYAR RT
Plaintiff
- and -
APOTEX INC.
Defendant
REASONS FOR ORDER AND ORDER