Pfizer Canada Inc. v Teva Canada L, 2015 FCA 257 (Gauthier J.A., Webb J.A. and Near J.A.)
November 18, 2015
Orestes Pasparakis, Allyson Whyte Nowak and Andrea Campbell for Pfizer (Appellants)
Marcus Klee and Devin Doyle for Teva (Respondent)
The Court of Appeal dismissed the appeal from an Order denying Pfizer’s motion for summary judgment in respect of Teva’s action against Pfizer under section 8 of the Patented Medicines (NOC) Regulations. Before the Federal Court, Pfizer argued that an Agreement between the parties barred Teva’s action. The Court disagreed and granted Teva’s parallel motion for summary judgment, finding that Pfizer cannot assert the Agreement to reduce or otherwise affect Teva’s claims.
Teva’s action arose following the dismissal of Pfizer’s application against Novopharm (now Teva) in relation to its Novo-Sildenafil product. Pfizer had also brought an application against ratiopharm, which was settled by entering into an Agreement. Teva and ratiopharm subsequently amalgamated and continued under the name of Teva. The Court held that, while the Agreement did bind Teva, article 7 did not cover claims in respect of Novo-Sildenafil (now Teva-Sildenafil).
The Court of Appeal agreed with the Court that the Agreement did not cover a claim for damages in respect of Teva’s Sildenafil product. While Teva was bound by the Agreement following amalgamation, it was only prevented from claiming damages arising from the ratiopharm proceedings. The Court of Appeal found that even if the Agreement was interpreted in such a way so as to not restrict the damages to the ratiopharm proceeding, it could only include litigation in respect of a new ANDS by ratiopharm, or possibly its successors. The Court of Appeal noted that one could not go back in time and rewrite the Agreement to apply it to claims arising from litigation excluded under a proper construction of the Agreement. Thus, the appeal was dismissed.
By: Jillian Brenner, Borden Ladner Gervais LLP