Teva Canada Ltd. v. Pfizer Canada Inc. et al., (2013) 441 F.T.R. 130 (FC)

• Judge: Campbell, J.
• Court: Federal Court (Canada)
• Case Date: October 10, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 441 F.T.R. 130 (FC);2013 FC 1066

Teva Can. Ltd. v. Pfizer Can. Inc. (2013), 441 F.T.R. 130 (FC)

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Temp. Cite: [2013] F.T.R. TBEd. OC.037

Teva Canada Limited (plaintiff) v. Pfizer Canada Inc. and Pfizer Inc. (defendants)

(T-1194-12; 2013 FC 1066; 2013 CF 1066)

Indexed As: Teva Canada Ltd. v. Pfizer Canada Inc. et al.

Federal Court

Campbell, J.

October 23, 2013.

Summary:

The plaintiff brought an action pursuant to s. 8 of the Patented Medicines (Notice of Compliance) Regulations, arguing that the defendants were liable for damages by keeping its drug RATIO-AMLODIPINE off the market between 2006 and 2009. A Prothonotary denied the defendants' motion to strike out the plaintiff's Statement of Claim and dismiss the action. The defendants appealed the Prothonotary's decision.

The Federal Court dismissed the appeal.

Courts - Topic 2583

Registrars and prothonotaries - Appeals from - Scope of review - The plaintiff (Teva) brought an action pursuant to s. 8 of the Patented Medicines (Notice of Compliance) Regulations, arguing that the defendants (Pfizer) were liable for damages by keeping its drug RATIO-AMLODIPINE off the market between 2006 and 2009 - A Prothonotary denied Pfizer's motion to strike out Teva's Statement of Claim and dismiss the action - Pfizer appealed the Prothonotary's decision - Pfizer argued that each question addressed by the Prothonotary in dismissing the motion to strike had to be considered de novo because each was vital to the final resolution of the present action - Pfizer also argued that the Prothonotary's exercise of discretion was based upon a wrong principle or upon a misapprehension of the facts - The Federal Court dismissed the appeal - The court stated that "Generally speaking, because on a motion to strike the focus of a Prothonotary is on the test as to whether it is plain and obvious that the claim cannot succeed, and because the dismissal of a motion to strike allows the full merits of the claim advanced by a plaintiff to be determined on a trial, it cannot be said that that the issues considered by a Prothonotary in dismissing a motion to strike are vital to the final resolution of the claim" - In addition, there was good reason to send the claim to trial without de novo consideration of the issues considered by the Prothonotary - Justice Evans in Apotex Inc. v. Eli Lilly and Co. (2004 FCA) cautioned that difficult questions involving the interpretation of s. 8 could only be satisfactorily resolved in the context of a trial - That caution applied to this litigation - The Prothonotary approached the motion to strike on correct legal principles, and on a full apprehension of the facts - There was no basis for interfering with the Prothonotary's clear reasons for allowing the claim to proceed to trial.

Food and Drug Control - Topic 1108.2

Drugs - New Drugs - Notice of compliance - Prohibition order (incl. compensation by first person) - [See Courts - Topic 2583 ].

Cases Noticed:

Merck & Co. et al. v. Apotex Inc. (2004), 315 N.R. 175; 30 C.P.R.(4th) 40; 2003 FCA 488, refd to. [para. 2].

Seanautic Marine Inc. v. Jofor Export Inc., [2012] F.T.R. Uned. 454; 202 FC 328, refd to. [para. 4].

Sanofi-Aventis Canada Inc. et al. v. Novopharm Ltd. (2010), 377 F.T.R. 293; 2010 FC 1210, refd to. [para. 5].

Canada v. Aqua-Gem Investments Ltd. (1993), 149 N.R. 273 (F.C.A.), refd to. [para. 6].

Apotex Inc. v. Eli Lilly & Co. et al. (2004), 328 N.R. 87; 2004 FCA 358, refd to. [para. 11].

Blencoe v. Human Rights Commission (B.C.) et al. (2000), 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 13].

Counsel:

Marcus Klee and Devin Doyle, for the plaintiff;

John B. Laskin and W. Grant Worden, for the defendants.

Solicitors of Record:

Aitken Klee LLP, Ottawa, Ontario, for the plaintiff;

Torys LLP, Toronto, Ontario, for the defendants.

This appeal was heard on October 10, 2013, at Toronto, Ontario, before Campbell, J., of the Federal Court, who delivered the following decision on October 23, 2013.