Big Suits | 37
Valasek, Martin J.
Norton Rose Fulbright
Canada LLP
(514) 847-4818
martin.valasek@
nortonrosefulbright.com
Mr. Valasek's international
practice embraces
both commercial and
investor-State arbitration
(including NAFTA Chapter
11), in sectors such as
aerospace, construction,
forestry, mining and
energy. He also advises
on cross-border litigation
matters.
Whelly, QC,
Charles D.
Cox & Palmer
(506) 633-2720
cwhelly@
coxandpalmer.com
Mr. Whelly is a partner
in the fi rm's Saint
John offi ce providing
litigation counsel
on a range of cases,
including commercial,
planning, environmental,
construction and
professional issues. He is
a Fellow of the American
College of Trial Lawyers.
Yorke-Slader,
QC, Blair C.
Bennett Jones LLP
(403) 298-3291
yorkesladerb@
bennettjones.com
Mr. Yorke-Slader is a
leading practitioner in
high-stakes corporate
and commercial litigation
with an active trial and
appellate business and
energy litigation practice.
He is the only Alberta
fellow of the IATL.
Wakil, Omar K.
Torys LLP
(416) 865-7635
owakil@torys.com
Co-chair of Torys'
Competition and Foreign
Investment Review
Practice. Advises on all
aspects of competition
law and on net benefi t
and national security
reviews under the
Investment Canada Act.
Chair of CBA Foreign
Investment Review
Committee.
Wisner, Robert
McMillan LLP
(416) 865-7127
robert.wisner@
mcmillan.ca
Mr. Wisner's practice
focuses on international
arbitration and cross-
border litigation. Many
of his clients are involved
in the mining and energy
sectors, and carry on
business in emerging
markets. He has
frequently lectured on
Mining Law and ADR.
Zakaib, Glenn M.
Cassels Brock &
Blackwell LLP
(416) 869-5711
gzakaib@
casselsbrock.com
Mr. Zakaib's practice
focuses on product
liability (drug and
medical devices,
automotive and aviation
products, industrial/
electrical equipment
and home appliances),
and class proceedings
(product liability,
life insurance and
Competition Act claims).
LEXPERT®Ranked Lawyers
intention of the parties to achieve this purpose. us, "where
an agreement could have the eff ect of preventing the appli-
cation of a recognized exception to settlement privilege, its
terms must be clear."
Bombardier Recreational Products (BRP) and Dow
Chemical Canada Inc. (Dow) are involved in multi-million
dollar litigation in Quebec. e parties agreed to participate
in a mediation presided by a private mediator. e media-
tion agreement signed by the parties provided that "any-
thing" said in mediation would be confi dential and that
nothing that transpires in the mediation should be alleged in
any proceeding. e parties agreed to settle the dispute but
disagreed about the scope of the settlement.
BRP fi led a motion to homologate the transaction. Dow
fi led a motion to strike the allegations that referred to events
that took place during the mediation on the grounds that
they were confi dential.
e judge of fi rst instance granted the motion in part,
holding that anything said or written in mediation is con-
fi dential. e Court of Appeal reversed that decision on
the grounds that the alleged discussions fell within the well-
known exception to settlement privilege, which allows par-
ties to prove that an agreement has been reached.
e SCC confi rmed the public policy objective of en-
couraging the settlement of disputes. It reiterated that settle-
ment privilege applies in Quebec as does the exception to the
privilege that allows the proof of a settlement.
e Court noted that parties could, by agreement, modify
the common law rules, including the exception to settlement
privilege, which allows evidence of discussions to prove the
existence of a settlement. However, their intention to do so
must be express and clear. e signing of a generic mediation
agreement providing for confi dentiality of the process will
not be suffi cient to conclude that the parties waived their
right to prove the terms of a settlement.
BRP was represented by Martin Sheehan, Stéphanie La-
vallée and Catherine Simonet of Fasken Martineau Du-
Moulin LLP.
Dow Chemical was represented by Richard Hinse, Robert
Mason and Dominique Vallières of Lavery, de Billy, L.L.P.
Jonathan Eades and Mark Witten represented the inter-
vener, the Attorney General of BC; and William McDowell,
Jon Laxer and Kaitlyn Pentney of Lenczner Slaght acted for
the intervener Arbitration Place Inc.
ALCON CANADA V. COBALT
DECISION DATE: MAY 14, 2014
e Federal Court ( e Court) has issued a judgment grant-
ing in part an Application commenced by Alcon Canada Inc.,
Alcon Pharmaceuticals, Ltd. and Bayer Intellectual Property
GmbH under the Patented Medicines (Notice of Compliance)
Regulations relating to the drug product Vigamox. Vigamox
is an ophthalmic solution containing 0.5 per cent moxifl oxa-
cin hydrochloride, an antibacterial agent belonging to the
class of compounds known as quinolones.
e judgment prohibits the Minister of Health from
issuing a Notice of Compliance to Cobalt Pharmaceuticals
Company for its generic version of Vigamox until the expiry
of Canadian Patent (CP) No. 1,340,114, November 3, 2015.
No order of prohibition was granted to two later-expiring
patents, CP No. 2,342,211, expiry September 29, 2019, and
CP 2,192,418, expiry December 9, 2016, which are listed on
the Patent Register against Vigamox.
CP No. 1,340,114 claims a series of compounds including
