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Date: 20020423 Neutral citation: 2002 FCA 147 CORAM: DÉCARY J.A. BETWEEN: RHOXALPHARMA INC. Appellant and AB HASSLE, ASTRAZENECA AB and ASTRAZENECA CANADA INC. Respondents and THE MINISTER OF NATIONAL HEALTH AND WELFARE and TAKEDA CHEMICAL INDUSTRIES LTD. Respondents Heard at Ottawa, Ontario, on April 23, 2002. Judgment delivered from the Bench at Ottawa, Ontario, on April 23, 2002. REASONS FOR JUDGMENT OF THE COURT BY: NOËL J.A. Date: 20020423 Neutral citation: 2002 FCA 147 CORAM: DÉCARY J.A. NOËL J.A. NADON J.A. BETWEEN: RHOXALPHARMA INC. Appellant and AB HASSLE, ASTRAZENECA AB and ASTRAZENECA CANADA INC. Respondents
and THE MINISTER OF NATIONAL HEALTH AND WELFARE and TAKEDA CHEMICAL INDUSTRIES LTD. Respondents REASONS FOR JUDGMENT (Delivered from the Bench at Ottawa, Ontario, on April 23, 2002.) [1] We can detect no error in the decisions under appeal. [2] The record before the motions Judge and in particular the nature of the evidence led by the parties over the course of the proceeding allowed her to conclude that the notice of allegation was based on a pure assertion of fact, namely that the appellant's proposed product did not contain an inert subcoating. It is only after this assertion was disproved that the appellant attempted to recast its notice of allegation in terms which brought into play the construction of the two patents in issue. [3] In our view, the motions Judge properly applied the decision of this Court in AB Hassle et al. v. Canada (Minister of National Health and Welfare) et al. 256 N.R. 172, when she held that the appellant could not, in effect, rewrite its notice of allegation after realizing that it was unable to establish the facts asserted in support of it. [4] The appeal will be dismissed with costs. "Marc Noël" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-9-01 STYLE OF CAUSE: RHOXALPHARMA INC. v. AB HASSLE ET AL. PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: April 23, 2002 REASONS FOR JUDGMENT OF THE COURT (Décary, Noël, Nadon JJ.A.) RENDERED FROM THE BENCH BY: Noël, J.A. APPEARANCES: Me Marie Lafleur for the Appellant Me Martin F. Sheehan Mr. Gunars A. Gaikis for the Respondents, AB HASSLE, Mr. J. Sheldon Hamilton ASTRAZENECA AB and ASTRAZENECA CANADA INC. SOLICITORS OF RECORD: Smart & Biggar for the Respondents , AB HASSLE, Toronto, Ontario ASTRAZENECA AB and ASTRAZENECA CANADA INC. Fasken Martineau DuMoulin LLP for the Appellant Montreal, Quebec |
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