Summary judgment motion in a s.8 proceeding; 2009 FC 631; fluconazole; June 12, 2009

The Court dismissed a motion by Pfizer for summary judgment in a s.8 proceeding. The Court found there was strong support in the case law for the proposition where the question of law in relation to s.8 is raised in relation to facts, summary judgment is not appropriate.

Pfizer argued that a unique set of factual circumstances relating to cross-referenced submissions and a failure of the generic companies to update their ANDSs should lead to the conclusion that Pfizer is not responsible for any portion of the delay between Apotex’ ANDS filing and the issuance of an NOC. Furthermore, Pfizer argued that Apotex could not establish any causal relationship between the damages and the NOC proceeding.

The Court accepted Apotex’ argument that there is a genuine issue for trial with respect to whether a Notice of Compliance would have issued in the absence of the Regulations at an earlier date. Thus, summary judgment was not appropriate in this case.

The full text of the decision can be found at:

http://decisions.fct-cf.gc.ca/en/2009/2009fc631/2009fc631.html