Gilead Sciences, Inc. v. Teva Canada Limited, 2016 FC 336

The Court dismissed Teva Canada Limited's appeal from the Prothonotary's Order declining to strike out Gilead's Statement of Claim in its entirety. The Prothonotary struck some of the pleadings, but allowed the action to continue on the basis of amended allegations of a likely future (quia timet) infringement.

Teva did not dispute that the Prothonotary identified the correct legal test for maintaining a quia timet proceeding. Rather, Teva alleged that the Prothonotary erred in the application of the test to the facts, namely that the Prothonotary wrongly ignored the temporal aspect of the test for imminent harm and misapplied the requirement that there be a "virtual inevitability" of future harm. Applying the standard of review of palpable and overriding error, the Court dismissed Teva's appeal under Rule 51.

The Court accepted Teva's point that the issuance of a NOC is not inevitable, but, at the same time, the likelihood of that event was not a matter of speculation. Rather, the question is whether the issuance of a NOC to Teva in these circumstances was sufficiently likely that Teva would then be positioned to act on its stated intention to immediately enter the market. In the decision below, the Prothonotary concluded that there was a strong possibility of infringement present, as Teva's product had been contingently approved by the Minister and Teva had equivocally stated that it would enter the market upon receipt of a NOC. The Court found that this conclusion could not be characterized as an error.

The Court held that the Prothonotary had not wrongly conflated the temporal aspect of imminence with the likelihood of a NOC issuing followed by an infringement. The Court also recognized that the temporal aspect of imminence may be a relevant consideration in the determination of the likelihood of a future event in some cases, and a subordinate consideration in others.