Pharmascience Inc. v Pfizer Canada Inc., 2015 FC 1134 (Zinn J.)
October 8, 2015
Christopher Tan and Krish Chakraborty of Sprigings Intellectual Property Law, for Pharmascience Inc. (Plaintiff)
Thomas Curry of Lenczner Slaght Royce Smith Griffin LLP, for Pfizer Canada Inc. (Defendant)
Result: Appeal granted, overturning order striking pleadings.
In an action for generic damages arising from prohibition proceedings involving the drug pregabalin, the Federal Court overturned a Prothonotary’s Order striking Pharmascience’s allegations of lost sales and opportunities relating to non-pregabalin products.
The parties and the Court agreed that the Order raised a question vital to the final issue and was thus reviewable on the standard of correctness.
The Court distinguished an earlier decision refusing amendments claiming similar damages as Pharmascience. The Court noted that those amendments were sought after a trial thathad been bifurcated as to liability and quantification. Also, due to their insufficient particularization, the Court had been unable to separate the amendments that impermissibly addressed liability issues rather than the outstanding quantification issues. In contrast, the Court held that Pharmascience’s pleading did not affect any earlier stage of the proceeding.
The Court discounted the concern about inefficient discoveries and further court proceedings expressed in that prior decision, noting that, while possibly relevant to motions to amend, this was not relevant to motions to strike. The Court held that the only relevant consideration on such motion is whether it is plain and obvious that the party pleading cannot succeed in the matter pleaded.
In that regard, the Court held that both the Order under appeal and prior decision recognized the possibility that losses during the section 8 period relating to other products and overall market share might potentially be recoverable in a section 8 proceeding. As such, it held that Pharmascience’s claim for such losses ought not to be struck.
The Court added that, if particulars were needed, they could have been sought by motion. Though not a bar to seeking such particulars, the Court noted that Pfizer had had no difficulty responding to similar allegations in an unrelated section 8 damages proceeding involving pregabalin, but a different generic manufacturer.
By: Kiernan A. Murphy, Gowling Lafleur Henderson LLP