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
Default judgment was granted against the Defendants in a
previous decision. In particular, the Court found, inter alia,
infringement of the Plaintiffs' registered trade- marks. The
Defendants brought this motion to set aside the default judgment.
The Court denied the motion.
The Court reviewed the evidence relating to the knowledge of the
Defendants in respect of the judgment against them. The Court set
out the three part test to be applied for setting aside a default
judgment, namely that the moving party establish that it has a
reasonable explanation for the failure to file a Statement of
Defence; that it has a prima facie defence on the merits to the
claim; and has moved promptly to set aside the default judgment.
The Court found that the Defendants failed to meet either the first
or third prong of the test, the motion was dismissed with
A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).