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Appeal from Federal Court order (2010 FC 968) allowing in part appellant’s motion to strike certain allegations from respondent’s statement of defence in present impeachment action—Appellant seeking to strike certain defences that Federal Court allowed to stand—Decision under appeal arising out of litigation in which appellant seeking authorization to market generic version of respondent’s drug VIAGRA, involving respondent’s Canadian Letters Patent No. 2163446—Appellant’s previous application for notice of compliance (NOC) to market drug rejected—Federal Court taking dim view of attempts to prevent relitigation of issues decided in NOC proceedings in subsequent actions—Res judicata in sense of cause of action estoppel inapplicable herein because subject matter of infringement or impeachment action very different from that of NOC proceeding—Issues of validity, infringement not before court in NOC proceeding—However, even where later proceeding involving issues different from earlier proceeding, judge having discretion to apply doctrines of issue estoppel or abuse of process in later proceeding to prevent party from relitigating certain factual, legal issues decided in earlier proceeding—Discretion must be exercised taking into account wide variety of circumstances—Difference between NOC proceeding, later proceedings important consideration for judge in later proceedings—Where party introducing significant, important new evidence or raising significant, important new argumentation in subsequent action, trial judge should reconsider issue in light of full record before court—Plain, obvious respondent’s defences of issue estoppel, collateral estoppel, comity, abuse of process, etc. cannot bar litigation of validity issue herein—Appeal allowed in part.

Apotex Inc. v. Pfizer Ireland Pharmaceuticals (A-371-10, 2011 FCA 77, Sexton J.A., judgment dated March 1, 2011, 13 pp.)