Common Hearing of Common Issues in NOC Proceedings is not Impermissible Joinder

Bayer Inc v Apotex Inc 2019 FC 191 Tabib J
            2,547,113 / 2,624,310 / 2,823,159 / rivaroxaban

Bayer is the plaintiff in two NOC actions, one against Teva, and a second, brought a month later, against Apotex [2]. Tabib J was appointed the case management judge in both actions [3]-[4]. It appears that she proposed that the common invalidity issues be tried together, as in Biogen v Taro 2018 FC 1034, in order to avoid unnecessary duplication and facilitate scheduling [22]. Both generics were amenable, but Bayer objected on the basis that doing so would constitute a joinder of actions prohibited by s 6.02 of the NOC Regulations.

Tabib J explained that what was being proposed was not consolidation, but rather common hearing of the common issues [12], [14]. Discoveries might be coordinated on consent, but need not be, and “the trials of both actions would proceed together, but only in respect of common issues, namely, claim construction and invalidity, for which the evidence would be adduced only once for the purposes of both; with respect to all other issues, including any issue of infringement, the trials would continue separately; finally, and just as importantly, two separate judgements would necessarily issue, each having binding effect only on the parties to which it relates, and each of which could even issue at different times” [14]. 

She noted that on a plain reading s 6.02 prohibits only joinder or consolidation, not a common hearing [16]. She also noted that the purpose of the prohibition was to restrict the number of issues in dispute in order to facilitate timely resolution of the action and to avoid complicating the assessment of damages [17]. She observed that ordering a common hearing of common issues was consistent with a purposive construction of the section, as the common hearing would likely facilitate timely resolution of the cases by facilitating scheduling [21], and would not introduce complications such as the need for amendments to the pleadings and so on, because the actions remain separate [20].

Tabib J therefore ordered that the two actions would be heard concurrently in respect of all common invalidity issues, but would proceed separately in all other respects.