Prothonotary granted leave to respondents to amend their pleading by adding five paragraphs. Broadly speaking, five paragraphs alleged that appellant was estopped from litigating certain findings of fact made in decision of United States District Court, Southern District of New York. Federal Court Judge dismissed appeal from that order. Federal Court Judge found that prothonotary’s decision to grant amendments was not vital to final outcome of case. Federal Court Judge found that appellant failed to demonstrate that prothonotary based his decision on wrong principle or upon misapprehension of facts. Further, Federal Court Judge observed that even if he exercised his discretion de novo, he would have allowed amendments. Appeal dismissed. Substantially for reasons offered by Federal Court, appellant had not demonstrated that, in granting amendments, prothonotary based his decision on wrong principle or upon misapprehension of facts. On their face, paragraphs alleged facts, not foreign court’s construction of claims in patent, and alleged legal result, that issue estoppel arose from them. It was not plain and obvious at this time that facts alleged were inextricably bound or related to foreign court’s construction of claims and that these paragraphs could not succeed in law. It would be for trial judge to determine on evidence whether facts alleged in these paragraphs were proven and whether, in law, they gave rise to issue estoppel.
Astrazeneca Canada Inc. v. Apotex Inc.
(Feb. 29, 2012, F.C.A., Dawson, Trudel and Stratas JJ.A., File No. A-211-11) Decision at 205 A.C.W.S. (3d) 907 was affirmed. 212 A.C.W.S. (3d) 24 (8 pp.).