Merck & Co. Inc. v. Apotex
T-2408-91
MacKay J.
24/1/95
34 pp.
Orders issued: (1) to settle terms of judgment in favour of plaintiffs (Merck & Co. v. Apotex Inc. (1994), 59 C.P.R. (3d) 133 (F.C.T.D.)) for infringement of exclusive rights under patent; and (2) pursuant to defendant's motion to stay judgment pending appeal of decision-Plaintiffs' motion to require defendant to post guarantee bond dismissed as defendant, largest independent Canadian-owned drug manufacturer, unlikely to be unable to meet any award of damages or accounting of profits -- Applicable standard for stay after judgment and pending appeal same as in case of interlocutory application for stay or injunction pending trial of an action i.e. (1) serious issue; (2) irreparable harm; and (3) balance of convenience favouring stay -- With respect to balance of convenience, defendant raising public interest argument: availability of lower cost generic drug in best interest of consumers and provincial health plans -- Public interest in form of lower cost of generic tablets to consumer and government health plans not outweighing interests of private parties under federal legislation in relation to patents where constitutional validity of legislation not in question and no Charter issues raised -- Adverse finding of irreparable harm: claims not demonstrating loss or harm attributable to injunction; certain claims too speculative in terms of cause and effect, or how to measure same -- Issue arising as to whether Court having jurisdiction to permit further filing and consideration of evidence subsequent to draft order pursuant to initial trial -- Court not functus officio in regard to merits of main motion under consideration until final determination set out in judgment, order, or reasons for judgment or order and that document filed-Admission of further evidence clearly within jurisdiction of Court until such time as Court functus officio -- Even in circumstances where Court functus officio, R. 1733 permitting, in exceptional cases, hearing of applications to vary a judgment or order already filed "where ground arising subsequent to judgment or order, or subsequently discovered, or to impeach judgement or order on ground of fraud" -- In instant proceedings, Court having obligation to conclude its deliberations of main motion; Court remaining seized of matter -- Court within jurisdiction to exercise its discretion in admitting further evidence even where no further evidence anticipated and draft order circulated to counsel -- Motion dismissed -- Federal Court Rules, C.R.C., c. 663, R. 1733.