Pfizer Canada Inc. v. Teva Canada Limited, 2015 FCA 257 

Drug: sildenafil

The Pfizer appellants (Pfizer) appealed the decision of the Court denying their motion for summary judgment in respect of the action by Teva Canada Limited (Teva) pursuant to section 8 of the Patented Medicines (Notice of Compliance) Regulations (Regulations). The issue in Pfizer's motion related to whether an Agreement between the parties prevented the action by Teva. The Court granted Teva's parallel motion for summary judgment, holding that Pfizer could not assert the Agreement in respect of Teva's claim.

Pfizer commenced an application pursuant to the Regulations against Novopharm. A later application against ratiopharm was settled by an Agreement. Novopharm subsequently changed its name to Teva, and amalgamated with ratiopharm and several other companies. The application against now Teva was dismissed by the Supreme Court of Canada. Pfizer consented to the issuance of a Notice of Compliance to ratiopharm in accordance with the Agreement. The ratiopharm product has subsequently been discontinued. Teva brought this action for lost sales of its sildenafil product. Pfizer argued that the Agreement prevented Teva from bringing the action.

The Court of Appeal agreed with the Court that the Agreement does not relate to a claim for damages in respect of the Teva sildenafil product. The Court of Appeal held that, even if the Agreement should not be construed to relate only to the specific Court file commenced against ratiopharm, it could only be understood to include litigation by ratiopharm or possibly ratiopharm's successors. The Court of Appeal discussed the effect of the amalgamation and held that, while Teva is bound by the Agreement, the Agreement could not be rewritten to apply to litigation that was excluded from the Agreement at the time of execution of the Agreement. The appeal was dismissed.