• The Federal Court Denies Leave to Amend a Pleading after Liability Stage of Trial
  • August 15, 2013
  • Law Firm: Borden Ladner Gervais LLP - Toronto Office
  • Eli Lilly Canada Inc. v. Novopharm Limited, 2013 FC 677

    Teva Canada Limited (formerly Novopharm) has been denied leave to amend their Statement of Defence and Counterclaim after the first phase (liability) of the bifurcated action has been heard and determined in its favour, but before the start of discoveries on the second phase (alleged losses) of the litigation.

    The Court disagreed with the way the pleading was amended. For example, rather than proposing an amended pleading with the amendments underlined pursuant to Rule 79(1), a “Fresh as Amended” version was filed that blurred the old with the new. As a result, any amendments that referred to liability issues were refused as amendments made after trial, including 1) a new cause of action under the Trade-marks Act; 2) the identity of the “first person”; and 3) the period during which Teva’s losses can be compensated. Amendments that go to the quantification of damages would potentially be allowable, but they were so intertwined with the liability issues that Teva’s proposed pleading was not permissible as it was currently drafted.

    Teva had also sought a scheduling order that would ensure the trial was heard within 18 months, but this was also denied due to the many unknowns resulting from the suggested changes to the pleadings.