Keep it Together: Federal Court Upholds Decision Refusing Bortezomib Bifurcation

On March 15, 2016, Justice Diner of the Federal Court released his Order and Reasons in Teva Canada Limited v. Janssen Inc., 2016 FC 318. The case involved the appeal of an order of Prothonotary Tabib, who had refused Janssen’s motion for bifurcation of both (i) Teva’s damages action pursuant to section 8 of the PM(NOC) Regulations and (ii) Janssen’s counterclaim for Teva’s alleged infringement of 4 patents.

On December 14, 2015 Janssen commenced a motion to bifurcate the proceedings between liability and quantification for both the section 8 action and the infringement counterclaim. Janssen also requested that if the section 8 component was not bifurcated, then the counterclaim should not be either. On January 26, 2016, Prothonotary Tabib released her Order dismissing Janssen’s motion.

On Appeal, Janssen argued that while the Prothonotary had identified the correct legal test for bifurcation (“whether bifurcation is more likely than not to result in the just, expeditious and least expensive determination of the proceeding on its merits”), she erred in applying the test by focusing exclusively on whether or not a trial on liability could put an end to the action.

Justice Diner dismissed this argument and held that the Prothonotary identified (and applied) the correct legal test. Justice Diner stated that the Prothonotary did not base her decision on a solitary factor as Janssen alleged, but instead identified and considered a number of the relevant factors set out in the jurisprudence.

Justice Diner went on to conclude that what Janssen was seeking in appealing this decision would amount to a reweighing of the evidence, which, following the Court of Appeal’s recent decisions in Turmel and Sport Maska, would subvert the high degree of deference owed to a discretionary decision of a Prothonotary.

Based on the foregoing, Justice Diner held that Janssen failed to demonstrate that the Prothonotary’s findings were clearly wrong either in fact or law and therefore declined to interfere with the order.

A copy of Justice Diner’s decision can be found here.

Aitken Klee represented Teva in this appeal.