Apotex Inc. v. Shire LLC, 2017 FC 139 (Lisdexamfetamine*)
Justice Strickland - 2017-02-06
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This is an appeal of an order of Prothonotary Mireille Tabib (“Prothonotary”), dated October 3, 2016, which partially consolidated the proceedings in Court File Numbers T-1056-16 and T-998-16 (“Order”). The appeal is brought by Apotex Inc (“Apotex”) pursuant to Rule 51 of the Federal Courts Rules, SOR/98-106 (“Rules”). For the reasons that follow, the appeal is dismissed. ... I am also not persuaded that Apotex faces any prejudice in the context of its potential right to damages under s 8 of the PM(NOC) Regulations as a result of the consolidation. If I understand Apotex’s argument correctly, it accepts that the consolidation is not in any way depriving it of its procedural right to s 8 damages. Rather, that to the extent that a loss on the Prohibition Application can be attributed to the consolidation and, more specifically, the tactical disadvantages it has created for Apotex, the consolidation has the domino effect of depriving Apotex of an otherwise justified s 8 remedy. I see no error in the Prothonotary’s conclusion that, given that any tactical disadvantage is unsubstantiated, there is no merit to this argument.
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