[11] It should be noted that, in the s. 8 proceeding, the
respondent included the same claims that they currently advance
in this action. However, when the appellants brought a motion to
strike out those claims on jurisdictional grounds, the respondent
voluntarily withdrew the claims.
[12] On June 27, 2011, the respondent commenced this action
in which it seeks treble damages under the Ontario Statute of
Monopolies or, alternatively, under the U.K. Statute of Monopolies. The respondent also claims additional or alternative damages
under the Trade-marks Act. The action progressed slowly, at least
until the motion judge began to case manage the proceeding. Just
prior to the release of a decision of the Supreme Court of Canada,
that I am about to describe, this action was to be set down for
trial by mid-February 2018.
II: THE ASTRAZENECA DECISION
[13] On June 30, 2017, the Supreme Court of Canada released
its decision in AstraZeneca Canada Inc. v. Apotex Inc., [2017]
1 S.C.R. 943, [2017] S.C.J. No. 36, 2017 SCC 36. In its decision,
the Supreme Court struck down the law on the promise doctrine,
which had been the foundation for the invalidity decision. The
Supreme Court found, at para. 2, that the promise doctrine was
“not the correct approach to determine whether a patent has suf-
ficient utility”. The promise doctrine, as applied by the Federal
Courts, required a review of the entire specifications, including
the patent’s claims and disclosure, to identify all promises of utili-
ty. If any identified promise of utility was not fulfilled, then the
utility requirement was not met and the patent was declared
to be invalid in its entirety. The Supreme Court rejected this
approach. It held that a single use related to the nature of
the subject matter was sufficient to demonstrate utility and, in
proving utility, even a scintilla of utility will suffice: AstraZeneca,
at para. 55.
[14] As a result of this decision, the appellants say that the
invalidity decision is fundamentally flawed. Indeed, they contend
that had the decision in AstraZeneca been available to Snider J.,
she would not have invalidated the 206 Patent. To give effect to
this contention, the appellants sought to amend their statements
of defence in this action, as I explained earlier.
III: THE DECISION BELOW
[15] There was no real issue between the parties before the
motion judge regarding the legal principles that apply to a pro-
posed amendment to a pleading under rule 26.01 of the Rules of
Civil Procedure, R.R.O. 1990, Reg. 194. The motion judge correctly
