Apotex Inc. v. Wellcome Foundation Inc.
A-294-98
Robertson J.A.
12/6/98
4 pp.
Application for order for expedited appeal from Campbell J.'s refusal to grant interim stay pending disposition of certain appeals from decision finding patent infringement, ordering Apotex to deliver up for destruction infringing drugs, enjoining manufacture of drug in question-Application allowed-(1) Serious issue focusing on irreparable harm-Moreover Apotex not seeking to have its appeal heard to detriment of others whose appeals already scheduled for hearing thus rendering cases such as Unilever Plc. v. Chefaro Proprietaries Ltd., [1995] 1 W.L.R. 243 (C.A.) irrelevant-In that case English C.A. referred to backlog of unheard appeals and to fact expedited hearing of appeal would have effect of either cancelling scheduled hearing or deferring unscheduled appeal-F.C.A. not presently plagued by such difficulties-Glaxo not establishing will be prejudiced by truncation of time limits prescribed by Federal Court Rules-Apotex prepared to file, serve appeal book, written memorandum within 5 days and to give respondent ample time to file, serve its memorandum-Kyorin Pharmaceutical Co. v. Novopharm Ltd. (1996), 67 C.P.R. (3d) 374 (F.C.T.D.), wherein motion to expedite trial dismissed, distinguished-Test articulated in Clattenburg et al. v. Canada (1986), 65 N.R. 315 (F.C.A.) for granting expedited appeals eclipsed by RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, and not reflecting reality that Federal Court of Appeal frequently requested to make panel of judges available for hearing of appeal in cases where legal issue involving allegation of irreparable harm if interim relief not granted-Provided timetable can be agreed to which is convenient to both Court and counsel for litigants, order for expedited appeal usually granted.