• Unparticularized Allegations Made Pursuant to S. 53 Struck Without Leave to Amend
  • March 21, 2017 | Authors: Jillian Brenner; Adrian J. Howard; Beverley Moore; Chantal Saunders
  • Law Firm: Borden Ladner Gervais LLP - Ottawa Office
  • Apotex Inc. v. Shire LLC, 2016 FC 1267
    Drug: lisdexamfetamine dimesylate

    In this case, Apotex started an action to impeach Shire's patent relating to lisdexamfetamine dimesylate. Shire brought a motion to strike portions of Apotex's Reply.

    The Court held that Section 53 allegations are essentially allegations of fraud and of a state of mind, and pursuant to Rule 181, require full particulars. Here, the pleadings failed to identify exactly who made what statements to the Patent Office. Furthermore, they were bereft of particulars as to the factual basis upon which the Court might be able to conclude that this person or persons knew, at the time, that the statements were false, or that these persons intended to mislead the Patent Office with these statements. There were only vague allegations that Shire made assertions as to the utility of the invention and now denies that these assertions amount to utility.

    The Court held that implicit allegations of fraud such as these are not proper pleadings. Such pleadings may be saved if the material facts can be inferred from the pleadings or representations of a party on a motion to strike. However, that is not the case here.

    Shire sought to strike a further paragraph. However, the Court held that it was a statement of legal conclusion, that does not open the door for Apotex to rely on or have discovery with respect to any fact that is already not specifically pleaded as a basis for arguing ambiguity. Parties are free to argue any legal consequence supported by the facts pleaded, thus, it is a waste of the Court's time to move to strike a legal conclusion. Thus, this portion of the motion was dismissed.

    Despite the divided success, the Court awarded elevated costs to Shire because Apotex's allegations of s.53 fraud were made casually and thoughtlessly.