Bayer Inc. v. Amgen Canada Inc., 2025 FC 264
Justice Manson - 2025-02-10
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On appeal from an Associate Judge (2024 CanLII 117240), the underlying Order denied the Plaintiffs’ request for an order compelling the Defendant, Amgen Canada Inc. (“Amgen”), for the production of samples. ... While the Hearing Judge may have been clearer in his application of the Eli Lilly test, he was consistent with it. As indicated by the “without more” in paragraph 36, the lack of a particularized test was not the only relevant factor that led to the finding that there was not a reasonable possibility that the proposed testing would reveal something useful to the trier of fact with respect to an issue in these proceedings. ... As stated above, while the nature of the type of tests that could be done can be a relevant factor in the Eli Lilly test, it is not determinative. The Hearing Judge did not treat it as such. Consequently, even if this Court was to agree that the Hearing Judge made a palpable error in failing to acknowledge the identified tests, it was not overriding. ... The appeal is dismissed.
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