• Motion to Amend in Light of SCC’s Decision in Astrazeneca Allowed in Part; Amendments for Allegation of Fraud Without Particular Facts Dismissed
  • November 3, 2017 | Authors: Chantal Saunders; Adrian J. Howard
  • Law Firm: Borden Ladner Gervais LLP - Ottawa Office
  • Apotex Inc. v. Shire LLC, 2017 FC 831

    In this motion, Apotex sought to amend its statement of claim in light of the Supreme Court’s decision in AstraZeneca Canada Inc. v Apotex Inc., 2017 SCC 36. The Court found that the majority of the amendments proposed by Apotex did not introduce new facts, but simply “recast” the same factual allegations underlying Apotex’s inutility plea. In describing the proposed amendments, the Court noted that:

    […] The amendments are slipshod, inconsistent and confusing. Although Apotex portrays its amendments as being made in accordance with the Supreme Court’s teachings on the correct approach to utility, they reflect, in my view, an obtuse application of selected passages of the Supreme Court’s decision, a refusal to come to terms with and embrace the essence of the Supreme Court’s teachings, and a fairly desperate attempt to shoehorn Apotex’s promise allegations into each and every ground of invalidity known to law. The resulting pleading remains haunted by the ghost of the now defunct promise doctrine and is neither particularly helpful nor illuminating.

    Notwithstanding the foregoing, the Court concluded that the factual allegations of the statement of claim relating to inutility should not be struck as disclosing no reasonable cause of action.

    The Court also allowed Apotex’s proposed amendments that alleged new facts, with the exception of the amendments found to be “a bare pleading that “the applicant was aware” that the inventors had not demonstrated or had no sound basis to predict a particular utility”. The Court noted that pleadings of fraud are a serious matter and the proposed pleading contained no particular facts upon which a Court might find any particular state of mind or knowledge in any particular persons at any particular time.