Pfizer received Notices of Allegation (NOAs) from both Novopharm and ratiopharm and started proceedings pursuant to the NOC Regulations in respect of each NOA. Subsequently, Novopharm changed its name to Teva Canada Limited. Furthermore, ratiopharm amalgamated with Teva Canada Limited. Pfizer brought this motion seeking to have the ratiopharm proceeding stayed, alleging it is improper for a drug company to have two NOAs on the same product.
The Court held that there is clear authority for the proposition that a second NOA, which is in all material respect similar to a prior NOA served by the same generic in an earlier proceeding, may be found to be an abuse of process. However, the Court held the ratiopharm and Novopharm NOAs are separate and distinct as they rely on different formulations and excipients for the product and also rely on different evidence. Furthermore, when the NOAs were drafted, they were entirely separate and distinct and the amalgamation does not change that fact. Thus, the Application is not an abuse of process and should not be stayed.
The Court also considered the Canada Business Corporations Act regarding amalgamations and held that the Act does not change the jurisdiction of the Court to control its own process but does lend support for the proposition that ratiopharm’s NOA is not an abuse of process. Finally, the Court held that it could not stay the proceeding indefinitely as the NOC Regulations provide that there needs to be either consent or a finding that one party has failed to reasonably cooperate in expediting the proceeding and neither of those circumstances apply here.