Federal Court of Appeal Decisions

Date: 20141028

Docket: A-395-13

Citation: 2014 FCA 244

Heard at Toronto, Ontario, on October 28, 2014.

Judgment delivered from the Bench at Toronto, Ontario, on October 28, 2014.

Date: 20141028

Docket: A-395-13

Citation: 2014 FCA 244

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Toronto, Ontario, on October 28, 2014).

NEAR J.A.

[1]               Pfizer Canada Inc. and Pfizer Inc. (Pfizer or the appellants) appeal from the October 23, 2013 decision of the Federal Court (2013 FC 1066) in which Justice Campbell dismissed their appeal of the decision of Prothonotary Milczynski (the Prothonotary) dated April 5, 2013.

[2]               The Prothonotary dismissed the appellants’ motion to strike the Statement of Claim of Teva Canada Ltd. (Teva or the respondent) seeking damages under section 8 of the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133 (PMNOC Regulations).  The appellants sought to strike the Statement of Claim on the basis that it disclosed no reasonable cause of action or constituted an abuse of process (under Rules 221(1)(a) and 221(1)(f) of the Federal Courts Rules, SOR/98-106, respectively).

[3]               The appellants raise two issues in relation to this appeal.  The appellants submit that the judge erred in not undertaking a de novo review of the Prothonotary’s decision and pointed to ongoing differences in the Federal Court as to the application of the test set out in Aqua Gem and subsequent cases.  The appellants invite us to resolve any uncertainty with respect to the application of the test set out in Aqua Gem.  The question as to the continued appropriateness of the test set out in Aqua Gem is one that is of some interest to the Court.  For example, see Apotex Inc. v. Bristol Myers Squibb Company, 2011 FCA 34 at paragraphs 6-9.  However, in our view this is not an appropriate case for resolving this question given the facts of this case.

[4]               The appellants also argue that it is plain and obvious that Teva’s claim is doomed to fail because it is grounded on a decision of the Federal Court that was overturned by our Court.  We do not agree.  In our view, the facts of this case illustrate that, as the Prothonotary observed, proceedings related to section 8 of the regulations, are still evolving and not fully settled.  For that reason, on the facts of this case, the appeal will be dismissed with costs.

"D.G.Near"

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: