Pfizer Canada Inc. v. Teva Canada Limited, 2016 FCA 218

Pfizer moved for an order reconsidering and varying the judgment of the Court of Appeal's decision in 2016 FCA 161, summarized the week of June 13, 2016. In that decision, Pfizer had successfully appealed from the Federal Court finding that Pfizer was liable for damages under section 8 (reasons in 2014 FC 248 and subsequent reasons in 2014 FC 634, summarized the week of April 7, 2014 and the week of August 11, 2014, respectively). The Court of Appeal set aside the Federal Court's damage award against Pfizer, and remitted the matter to the Federal Court for reconsideration.

In the current motion, Pfizer stated that it paid the damages to Teva following the Federal Court's damage award. Following the Court of Appeal's judgment setting aside the damages award, Teva refused to return Pfizer's payment. Therefore, Pfizer asked that the Court vary its judgment to add a requirement that Teva return the payment with interest.

The Court of Appeal noted that it could not entertain this motion unless it has subject-matter jurisdiction over it, namely whether the current two judge panel could vary the judgment issued by the three judge panel where one of the three Justices on the appeal that issued the judgment has retired.

The Court found that Rule 399(2)(a), which allows the Court to vary a judgment where something unforeseen that could not have been dealt with as part of the appeal hearing but related to it has later happened, did not apply in these circumstances. In this case, Pfizer could have specifically requested, in its notice of appeal, that if judgment were given in its favour, Teva should return the payment with interest. However, there was no such request in Pfizer's notice of appeal.

This also barred relief under Rule 397(1)(b), which deals only with “a matter that should have been dealt with” that “has been overlooked or accidentally omitted” in the Court's judgment.

The Court dismissed the motion but not before providing two alternatives. First, Pfizer could now sue Teva for restitutionary recovery of monies wrongly withheld from it and any other relief warranted by Teva's act. Lastly, since this matter was remitted to the Federal Court for redetermination, Pfizer could provide submissions as to what interest Teva should pay during the period that it wrongly held Pfizer's payment. However, if Teva was entitled to its damages award all along, the Federal Court may find that Teva's retention of Pfizer's damages payment is of no remedial consequence whatsoever.