PRACTICE |
Pleadings |
Motion to Strike |
Apotex Inc. v. Glaxo Group Ltd.
T-428-01
2001 FCT 1351, Kelen J.
10/12/01
6 pp.
Appeal under r. 51 from order of Associate Senior Prothonotary dismissing defendants' motion to strike paragraphs 6, 7, 8 of plaintiff's reply, defence to counterclaim--Standard of review in appeal from discretionary order of prothonotary: order must be demonstrably "clearly wrong", in that decision based upon incorrect principle of law--Whether said paragraphs of reply, defence to counterclaim should be struck under r. 221--For purpose of motion under r. 221, Court must accept facts alleged as true, decide whether alleged facts advance, support reply, defence to counterclaim, or alleged facts plainly, obviously futile--Court will generally refuse to strike out "surplus statements" not prejudicial--Doubt to be resolved in favour of permitting pleading so that relevant evidence in support of pleading may be brought before Trial Judge--Within discretion of prothonotary to not strike paragraphs of plaintiff's reply and defence to counterclaim as may have some relevance, not scandalous, frivolous, vexatious, will not prejudice, delay fair trial of action--Court will not strike out statements that are merely surplus provided no prejudice flows from them--Court not prejudiced from making independent, fresh determination in patent infringement action because of two prior proceedings under Regulations--Prothonotary not "clearly wrong" in dismissing defendants' motion to strike paragraphs 6, 7, 8 of plaintiff's reply, defence to counterclaim--Appeal dismissed--Federal Court Rules, 1998, SOR/98-106, rr. 51, 221--Patented Medicines (Notice of Compliance) Regulations, SOR/93-133.