Apotex Inc. v. Pfizer Ireland Pharmaceuticals (2010 FC 968)

T-772-09,

Appeal of Prothonotary’s decision denying permission to amend statement of defence, sildenafil citrate, September 28, 2010

Apotex appealed an Order of Prothonotary Aalto dismissing a motion to strike parts of Pfizer’s Statement of Defence relating to res judicata, estoppel (issue and collateral), comity and abuse of process. For a summary of the Prothonotary’s decision, see the July 2010 edition of this newsletter. Apotex had been unsuccessful in challenging Pfizer’s patent in PMNOC proceedings and had commenced an action to invalidate the patent. Part of Pfizer’s defence was that the earlier PMNOC proceedings should have a limiting effect on Apotex’s action and the evidence that Apotex was entitled to put forward. Mr. Justice Hughes heard the appeal de novo and dismissed the appeal. Pfizer agreed to strike its defence in respect of the res judicata grounds in light of certain jurisprudence but submitted that the grounds of estoppel (issue and collateral), comity and abuse of process should remain. The Judge agreed, deciding that these issues had not been squarely raised previously and should not be struck at the interlocutory stage.