Pfizer brought a motion to strike Teva’s claim in T-1194-12, for damages under section 8 of the PM(NOC) Regulations in its entirety on the basis that it was doomed to fail because it was allegedly grounded upon a decision of the Federal Court that was subsequently overturned on appeal.
Prothonotary Milczynski dismissed Pfizer’s motion and this decision was upheld on appeal by Justice Campbell of the Federal Court, who applied a deferential standard of review. Justice Campbell held that because the dismissal of a motion to strike allows the full merits of the claim 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 necessarily vital to the final resolution of the claim. Pfizer had argued that this approach was incorrect in light of the Federal Court of Appeal’s decision in Merck & Co v Apotex Inc, 2003 FCA 488.
The Court of Appeal rejected Pfizer’s arguments on the merits, holding that the law under section 8 is not fully settled and that it is not plain and obvious that Teva’s claim could not succeed. The litigation surrounding ratio-amlodipine has a long and complex history involving several patents and numerous decisions of the Federal Court and Federal Court of Appeal. The issue of whether Teva’s claim was improperly based on a reversed decision involved detailed arguments about the history of the litigation and the nuances of section 8 jurisprudence.
The Court of Appeal declined to resolve the issue of the appropriate standard of review. But suggested it would be open to re-visiting the issue. It stated that “the question as to the continued appropriateness of the test set out in Aqua Gem [the seminal case on the standard of review] is one that is of some interest to the Court.”
Aitken Klee LLP represented Teva in this matter.
A copy of the Federal Court of Appeal’s Reasons for Judgment can be found here.
The Federal Court’s Reasons can be found here.