• Pleadings Amendments are Allowed to Particularize What a Party Would Have Done in the "But For" World
  • June 23, 2016 | Authors: Adrian J. Howard; Beverley Moore; Chantal Saunders
  • Law Firm: Borden Ladner Gervais LLP - Ottawa Office
  • Apotex Inc. v. Astrazeneca Canada Inc., 2016 FC 552

    This is an action where Apotex has claimed section 8 damages against AstraZeneca. The Court had previously ruled on a motion to determine objections arising out of discoveries. In that ruling, it was noted that the pleadings of both parties were deficient as it relates to what they would have done in the "but for" world. AstraZeneca sought particulars from Apotex and in response sought to amend its pleading by way of motion.

    AstraZeneca's motion sought to particularize what it would have done in the “but for” world, including the authorization of a generic product. Apotex opposed, saying the pleading had no air of reality.

    Leave was granted to amend the statement of defence. But, AstraZeneca was told to make better particularized amendments alleging what it would have done if Apotex had launched in the manner set out in its particulars, including that AstraZeneca would have launched an authorized generic sooner than it in fact did and would not have opposed other generics coming onto the market.