LEXPERT MAGAZINE
|
MARCH 2016 33
| RECENT LITIGATION OF IMPORTANCE |
produced the alleged invention, panto-
prazole magnesium dihydrate. e Court
relied upon an experiment conducted by a
Mylan expert demonstrating that a method
disclosed in the prior art application pro-
duced pantoprazole magnesium dihydrate.
Even though the prior application did not
expressly disclose that pantoprazole mag-
nesium dihydrate was made, the Court
concluded that the prior application an-
ticipated the alleged invention because a
skilled person following the prior art meth-
od would inevitably or necessarily have ob-
tained the invention.
e Court rejected Takeda's criticisms
of the Mylan experiment as theoretical
and unsupported.
With respect to non-infringement, the
Court found that Mylan did not infringe
the 031 Patent because its proposed panto-
prazole magnesium drug product was in a
different crystalline form than a dihydrate.
Again, the Court preferred and relied upon
the opinion of Mylan's experts that its pro-
posed product had a different x-ray powder
diffraction (XRPD) fingerprint than the al-
leged invention disclosed in the 031 Patent.
Bradley White, Vincent de Grandpré and
Geoffrey Langen of Osler, Hoskin & Har-
court LLP represented Mylan Pharmaceut-
icals ULC.
Christopher Van Barr, Kiernan Mur-
phy and William Boyer of Gowling WLG
represented Takeda Canada Inc. and Take-
da GMBH.
APPLICATION BY UNION
GAS LIMITED, PURSUANT
TO S. 36(1) OF THE ONTARIO
ENERGY BOARD ACT, 1998
DECISION DATE: APRIL 9, 2015
Union Gas Limited (Union) provides an
integrated natural gas utility to over 1.4
million residential, commercial and indus-
trial customers in Ontario at a regulated
rate. e rate is determined from time to
time via "rebasing," which involves a con-
sideration and allocation of Union's relevant
income and expenses.
On May 16, 2014, Union applied to the
Ontario Energy Board (the OEB or the
Board) seeking regulated rate approval for
a new interruptible liquefaction natural gas
(LNG) service at its Hagar facility near Sud-
bury, Ontario. Union proposed that this new
interruptible service be folded into the exist-
ing rate base – meaning that the capital costs
of the new service, as well as certain profits
accruing from it, would be calculated in to
the regulated rate upon rebasing.
Union's application attracted several inter-
venors, including Northeast Midstream L.P.
(Northeast), a new entrant to the LNG mar-
ket in Ontario. Northeast argued that the
OEB should forbear from regulating Union's
new interruptible service on two bases: (a)
that the relevant provision of the Ontario
Energy Board Act, s. 29, mandated forbear-
ance as a result of the relevant market being
competitive "sufficient to protect the public
interest"; and (b) that under Union's propos-
al existing ratepayers would bear the risk of
the new LNG service underperforming, for-
cing the consumer to bear the capital costs of
Union's venture.
On April 9, 2015, the OEB ruled in favour
of Northeast's motion. Rather than having
ratepayers bear the risk of Union's new LNG
service, the Board ordered that Union insti-
tute a utility cross charge by which certain
profits of the new non-regulated business
would be treated as regulated utility earnings
and eligible for sharing with ratepayers.
Northeast Midstream L.P. was repre-
sented by Goodmans LLP with a team
that included David Lederman and Jesse-
Ross Cohen.
Union Gas was represented by Charles
Keizer of Torys LLP.
As noted, there were also several interven-
ors. ey and their counsel were:
Canadian Manufacturers & Exporters –
Peter ompson, QC, then of Borden Lad-
ner Gervais LLP (BLG), now of ompson
Mediation Services and a part-time OEB
board member, and current BLG partner
Emma Blanchard.
Building Owners and Managers Associa-
tion, Greater Toronto – omas Brett, Fog-
ler, Rubinoff LLP.
School Energy Coalition – Mark Ruben-
stein, Jay Shepherd Professional Company
Energy Probe Research Foundation –
David MacIntosh (Case Manager).
Industrial Gas Users Association – Ian
Mondrow, Gowling WLG.
NOTEWORTHY DECISIONS
AS SELECTED BY LEXPERT
SIGNIFICANT BUSINESS LAW DECISIONS ORDERED
BY MOST FREQUENTLY VIEWED IN WESTLAWNEXT®CANADA
1) Equustek Solutions Inc. v. Jack, 2015 CarswellBC 2886
British Columbia Court of Appeal
>
Counsel for Appellant: Stephen Schachter, QC,
and Geoffrey Gomery, QC, of Nathanson, Schachter & ompson LLP and James Bunting
of Davies Ward Phillips & Vineberg LLP
>
Counsel for Respondent Plaintiffs: Robert
Fleming and John Zeljkovich of Robert Fleming Lawyers
>
Counsel for Intervener, Canadian
Civil Liberties Association: Joseph McArthur and omas Posyniak of Blake, Cassels &
Graydon LLP
>
Counsel for Intervener, Electronic Frontier Foundation: David Wotherspoon
and Daniel Byma of Fasken Martineau DuMoulin LLP
>
Counsel for Interveners, Inter-
national Federation of Film Producers Associations and International Federation of
the Phonographic Industry: Barry Sookman and Miranda Lam of McCarthy Tétrault LLP
2) Potter v. New Brunswick (Legal Aid Services Commission),
2015 CarswellNB 87 Supreme Court of Canada
>
Counsel for Appellant:
Eugene Mockler of EJ Mockler Professional Corp., Perri Ravon of Power Law
>
Counsel
for Respondent: Clarence Bennett and Josie Marks of Stewart McKelvey
3) White Burgess Langille Inman v. Abbott and Haliburton Co.,
2015 CarswellNS 313 Supreme Court of Canada
>
Counsel for Appellants:
Alan D'Silva, James Wilson and Aaron Kreaden of Stikeman Elliott LLP
>
Counsel for
Respondents: Jon Laxer of Lenczner Slaght Royce Smith Griffin LLP, Brian Murphy of
groupe Murphy group
>
Counsel for Intervener, Attorney General of Canada: Michael
Morris of Justice Canada
>
Counsel for Intervener, Criminal Lawyers' Association (Ontario):
Matthew Gourlay of Henein Hutchison LLP
